Leetsch v. Freedman

260 F.3d 1100, 2001 Daily Journal DAR 8577, 2001 Cal. Daily Op. Serv. 6982, 2001 U.S. App. LEXIS 18187, 2001 WL 902136
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 13, 2001
DocketNo. 99-56898
StatusPublished
Cited by43 cases

This text of 260 F.3d 1100 (Leetsch v. Freedman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leetsch v. Freedman, 260 F.3d 1100, 2001 Daily Journal DAR 8577, 2001 Cal. Daily Op. Serv. 6982, 2001 U.S. App. LEXIS 18187, 2001 WL 902136 (9th Cir. 2001).

Opinions

Opinion by Judge BEEZER; Concurrence by Judge BERZON

BEEZER, Circuit Judge:

This is an appeal in a civil suit from a final judgment of dismissal on forum non conveniens grounds. We have jurisdiction, and we affirm.

I

Appellant Ingo Leetsch is an attorney admitted to practice in the Federal Republic of Germany. He filed suit in the Central District of California seeking a judgment for attorney fees and costs for services rendered to his former clients. Leetsch rendered professional legal services involving restitution of his former clients’ real properties located in Berlin, Germany.

The named former clients moved to dismiss on forum non conveniens grounds. They argue that Germany offered an adequate alternative forum and that the German court was vested with jurisdiction over the parties. The former clients plead that German law governs the calculation of attorney fees due and that Leetsch has already instituted an action in Germany regarding the same or similar subject matter.

Leetsch filed an ex parte application for an order granting leave “to lodge and file a new proposed order with an addendum” requesting that the court impose conditions to secure return jurisdiction over his former clients.

The district court granted the motion to dismiss without addressing Leetsch’s request. Leetsch argues that the trial court abused its discretion by failing to reserve jurisdiction over Leetsch’s former clients.

II

We review the forum non conveniens determination for a “clear” abuse of discretion, defined as “relying on an erroneous view of the law, ... relying on a clearly erroneous assessment of the evidence, or ... striking an unreasonable balance of relevant factors.” Ravelo Moneg[1103]*1103ro v. Rosa, 211 F.3d 509, 511 (9th Cir.2000), cert. denied, sub nom San Francisco Baseball Assocs. L.P. v. Monegro, 531 U.S. 1112, 121 S.Ct. 857, 148 L.Ed.2d 771 (2001). Whether to dismiss an action on forum non conveniens grounds requires the district court to consider the availability of an adequate alternative forum, and then to consider whether several “private” and “public” interest factors favor dismissal.1 See, e.g., Gemini Capital Group v. Yap Fishing Corp., 150 F.3d 1088, 1092-95 (9th Cir.1998) (analyzing factors). When we review a forum non conveniens determination, we give less deference to a foreign plaintiffs choice of a United States forum than to a domestic plaintiffs choice. Ravelo Monegro, 211 F.3d at 514.

Ill

The existence of an adequate alternative forum depends upon whether or not an alternative forum is “so clearly inadequate or unsatisfactory that it is no remedy at all. This requirement is generally satisfied if the defendant is amenable to service of process in the alternative forum.” Creative Tech., Ltd. v. Aztech Sys. Pte., Ltd., 61 F.3d 696, 701 (9th Cir.1995) (quotation marks and citations omitted). Amenability to service of process, however, is not the only determinant of a forum’s adequacy.

The foreign court’s jurisdiction over the case and competency to decide the legal questions involved will also be considered. See Cheng v. Boeing Co., 708 F.2d 1406, 1410 (9th Cir.1983). We make the determination of adequacy on a case by case basis, with the party moving for dismissal bearing the burden of proof. See Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143 (9th Cir.2001) (“[T]he burden of showing the existence of an adequate alternative forum is the defendant’s.”) (citation omitted).

Both parties conceded at oral argument that appellees’ amenability to service is not in question. Service would be possible, albeit at some expense and delay, under procedures set forth in the Hague Convention. See Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 (setting forth procedures). Furthermore, under Cheng, the amenability issue may be resolved by inquiring whether the German court system has the jurisdiction and competence to hear Leetsch’s claim. See 780 F.2d at 1410-11. As Leetsch himself stated, the German court has jurisdiction over this matter. The German court would be more competent than a United States court to hear the claim because of its familiarity with the German language and the governing German law. The trial court correctly determined that the German court offered an adequate alternative forum.

IV

Despite the jurisdiction and competence of the German courts and appellees’ stated amenability to proper service, Leetsch argues that because the district court declined to impose conditions retaining jurisdiction and providing for return jurisdiction over appellees, Germany would be an inadequate forum. Leetsch is attempting to require appellees to: (1) agree that each is a proper party to suit in Germany; (2) waive any objections to the personal or subject matter jurisdiction of the German courts; (3) waive the statute of limitations; (4) consent to service of [1104]*1104process in Germany; and (5) waive any objection if Leetsch asked a U.S. court to enforce any German judgment against them. Leetsch cites Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 908 (5th Cir.1997), which holds that failure to impose a return jurisdiction clause was a per se abuse of discretion. Robinson’s bright line test, however, is not controlling in this circuit and, in fact, contradicts the Supreme Court’s observation that forum non conveniens determinations have “repeatedly emphasized the need to retain flexibility.... [E]ach case turns on its facts.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (quotation marks and citation omitted).

We have not imposed an inflexible test requiring conditional dismissals, as Leetsch claims. For example, in a case in which American owners and insurers of cargo sued German defendants involved in a vessel’s collision in Japanese waters, we held that conditional dismissal established amenability to process and, therefore, an adequate alternative forum. Ceramic Corp. v. Inka Maritime Corp., 1 F.3d 947, 949 (9th Cir.1993). We held similarly that conditional dismissal, plus the defendant’s claim in the foreign forum at issue, “satisfies the legal standard” of amenability to process. Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1450 (9th Cir.1990). Our willingness to impose conditions in some cases, however, does not create an inflexible requirement that a trial court must impose similar conditions across the board. Ceramic Corp. and

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260 F.3d 1100, 2001 Daily Journal DAR 8577, 2001 Cal. Daily Op. Serv. 6982, 2001 U.S. App. LEXIS 18187, 2001 WL 902136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leetsch-v-freedman-ca9-2001.