Panama Processes, S.A. v. Cities Service Company

650 F.2d 408, 1981 U.S. App. LEXIS 12766

• Court: Court of Appeals for the Second Circuit
• Decided: May 29, 1981
• Docket: 872, Docket 80-9100
• Status: Published

Opinions

KEARSE, Circuit Judge:

Plaintiff-appellant Panama Processes, S.A. (“PPSA”) appeals from a judgment of the United States District Court for the Southern District of New York, Charles S. Haight, Jr., Judge, conditionally dismissing on grounds of forum non conveniens PPSA’s action seeking damages and injunctive relief for breach of contract and breach of fiduciary duty by defendant Cities Service Company (“Cities”). Because we find no abuse of the district court’s discretion, we affirm.

FACTS

The present lawsuit concerns the conduct since 1965 of the affairs of a Brazilian corporation, Copebras, S.A., 30.31% of whose stock is owned by PPSA, with the remaining 69.69% currently owned by Citco do Brasil Industria a Comercio Ltda. (“Citco do Brasil”), a company owned by two Delaware subsidiaries of Cities. In 1965 Cope-bras had three shareholders: PPSA, a Cities subsidiary called Columbian Carbon Company (“Columbian”) which was subsequently merged into Cities, and Celanese Corporation (“Celanese”). In that year Celanese sought to sell its shares, and the three shareholders agreed that Celanese’s interest would be purchased by Copebras, leaving Columbian with 69.69% of the outstanding stock and PPSA with the remainder. PPSA, however, was concerned that Columbian might cause Copebras to reinvest its income rather than paying dividends. As the price of agreeing to Copebras’s purchase of the Celanese interest, therefore, PPSA obtained agreement from Columbian in a letter dated September 7, 1965 (the “1965 Agreement”), endorsed by PPSA, stating in part as follows:

In the event Columbian Carbon Company (Columbian) attains a majority position in the stock interest of Companhia Petroquímica Brasileira (Copebras), you as a minority shareholder have expressed your concern as to the dividend policy Columbian would adopt.

It must be recognized that future policy of this kind may be affected by the industrial, fiscal, and political situation in Brazil, and that the corporate objectives and competitive position of Copebras may change from time to time.

It is definitely the intention of Columbian after due consideration of the above factors to cause Copebras to declare dividends, insofar as it may legally do so, to the extent of at least 50% of each year’s net income after taxes.¹

The complaint, filed in 1979,² alleges that during the period 1965-1978 Cities breached the 1965 Agreement and breached its fiduciary duty as majority shareholder of Cope-bras, by employing a variety of “manipulative” accounting devices and expanding the Copebras business in such a way as to benefit Cities while avoiding the payment of dividends to Cities and PPSA. In part, PPSA contends that Cities caused Copebras to adopt an accelerated depreciation accounting method for its Brazilian financial statements, thus lessening Copebras’s earnings from which dividends could be paid. PPSA seeks judgment declaring that Cities has breached the 1965 Agreement, awarding monetary damages in an amount equal to the dividends that would have been paid but for the contractual and fiduciary breaches, and enjoining Cities from taking any future action in the conduct of Cope-bras’s affairs to depress Copebras’s “true economic earnings or the true value of the shareholders’ equity in Copebras and from otherwise preventing the payment of properly computed cumulative dividends.”

Cities moved for dismissal of the action on the ground of forum non conveniens,³ advancing a number of arguments to show that New York is an inappropriate forum. These included the facts that PPSA is a Panamanian corporation with its principal place of business in London, and is not authorized to do business in New York, and that the only present contact of New York with the controversy is the current residence in New York of PPSA’s chief executive officer; that Cities is a Delaware corporation whose principal place of business, although in New York until 1974, is currently in Tulsa, Oklahoma; that Cities has in New York just six employees, none of whom has knowledge relevant to this dispute; that Cities has no relevant documents in New York; that Copebras is a Brazilian corporation that does no business in the United States; that Citco do Brasil similarly neither does business nor is authorized to do business in the United States; that Copebras’s books and records are in Brazil and cannot lawfully be removed from Brazil; that those books and records are in the Portuguese language and would have to be translated for an American jury; and that Brazilian law would govern the question of what fiduciary responsibility a majority shareholder such as Citco do Brasil has to a minority shareholder such as PPSA. Finally, Cities argued that there is no genuine issue as to what accounting methods or business operations Copebras undertook, nor as to the fact that Cities controlled Copebras; but Cities would expect to show that economic, industrial, and political conditions in Brazil from 1965 through 1978 were such as to justify, within the contemplation of the 1965 Agreement, any actions taken by Copebras at the behest of Cities. Cities argued that all of these factors, plus the consideration that the injunctive relief sought by PPSA would require continuing judicial supervision over Copebras’s operations and fiscal affairs, make it appropriate for the present action to be pursued in Brazil and not in New York. As a condition to dismissal on this ground, Cities offered to submit to the jurisdiction of the courts of Brazil.

PPSA, in opposition to the motion, pointed out, inter alia, that the 1965 Agreement and the other agreements leading to Cope-bras’s purchase of Celanese’s stock were executed in New York and that Cities had then been headquartered here; that many of the meetings of one of Copebras’s governing bodies had been conducted in New York; that the Brazilian courts provide more limited discovery than do United States courts; and that PPSA’s claims depend strictly on actions taken by Cities in the United States, not on Copebras’s own acts or on conditions in Brazil.⁴

The District Court’s Decision

In a thorough opinion, reported at 500 F.Supp. 787, the district court reviewed the pertinent principles set forth in the leading forum non conveniens cases, including Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) (“Gilbert”); Alcoa Steamship Company v. M/V Nordic Regent, 654 F.2d 147 (2d Cir.) (en banc), cert. denied, - U.S. -, 101 S.Ct. 248, 66 L.Ed.2d 116 (1980) (“Alcoa”); Schertenleib v. Traum, 589 F.2d 1156 (2d Cir. 1978) (“Schertenleib”); and Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880 (2d Cir. 1978) (“Farmanfarmaian”). As set forth in greater detail below, the court evaluated the prospects of the parties for a fair adjudication of the claims in the alternative forums, as well as such “public interest” factors as the remoteness of the forum from the center of the controversy, and the ease or difficulty of judicial enforcement of an eventual judgment, and concluded that New York is not, and Brazil is, an appropriate forum for this action.

First, the court recognized that political, industrial, and economic circumstances in Brazil since 1965 will have had an effect on the parties’ substantive contractual rights:

Clearly, the reasons underlying the manner of Copebras’ accounting, expansion, and dividend policies are important to the resolution of these disputes. It will be recalled that Columbian’s undertakings in the September 7,1965 letter, in respect of dividend policy and plant expansion, were preceded by the caveat that the parties must recognize “that future policy of this kind may be affected by the industrial, fiscal, and political situation in Brazil, and that the corporate objectives and competitive position of Copebras may change from time to time.” In its present complaint, at H 18, Panama specifically alleges that during the period from 1965 through 1978, “there has been no change in the Brazilian economic, political or fiscal conditions sufficient to justify a failure to declare the cumulative dividends required by the September 7 agreement.”

500 F.Supp. at 793. Whether there have been material changes as Cities contends, or no such changes, as PPSA contends, must therefore be determined. Id. at 797. Against this Brazilian background, the court observed the need to evaluate the actions and competitive interests of a Brazilian corporation that does business only in Brazil:

The disputes between Panama and Cities arise directly out of the operations of Copebras. Furthermore, the parties recognized in the September 7, 1965 letter that Cities’ future policy obligations in respect of dividends “may be affected by the industrial, fiscal, and political situation in Brazil,” as well as changing “corporate objectives and competitive position of Copebras.” The letter agreement does not undertake to further define these considerations, or to lay down ground rules for Cities’ response to them, other than providing, in the next paragraph of the letter, that the majority stockholder give “due consideration of the above factors”; but it is entirely clear that Brazilian affairs, in general, and Copebras’ affairs in particular, inform and shape the parties’ rights and obligations under the letter agreement.

Id. at 795.⁵ Most of the proof as to the Brazilian history and political conditions, and of Copebras’s own competitive situation would necessarily come from Brazil:

If the case is tried here, it is clear that even assuming the parties’ contractual rights are governed by New York law, Brazilian facts and law are inextricably involved. The existence vel non of significant developments in the “industrial, fiscal, and political situation in Brazil,” upon which Cities’ obligations under the September, 1965 agreement are conditional, would require a New York jury to first comprehend and then evaluate the last 14 years of that nation’s volatile economic and social history. Comparable complexities of proof arise with respect to “the corporate objectives and competitive position of Copebras” within the Brazilian economy,, another circumstance upon which Cities’ obligation on dividends is conditional. Proof of these underlying circumstances must come primarily from Brazil.

The . . . impact of Cities’ decisions upon Copebras, also depends primarily upon Brazilian evidence. The corporate books of account are kept in Portuguese, in accordance with the advice of Brazilian accountants whose practices apparently differ in certain respects from those in this country. Cities’ Brazilian attorney states that “under the laws of Brazil it would be unlawful to remove the books of account of Copebras from the country.” . . . Assuming that this practical problem may be solved by the reproduction and certification of copies, ... the fact remains that a New York jury would be confronted with 14 years of corporate “sonnets from the Portuguese” requiring translation. It is reasonable to assume that many documents . . . will be in Portuguese. This is a significant forum non conveniens factor: “More to the point, most of the pertinent documents relevant to the underlying dispute are in French. The expense of translation, which is potentially substantial, would be totally avoided if trial is in Geneva.” Schertenleib, supra, 589 F.2d at 1165.

Of course, documents in English evidencing Cities’ decision-making processes as majority shareholder of Copebras would presumably have to be translated into Portuguese for the benefit of a Brazilian judge; and American witnesses, including Panama’s Mr. Michaan, who sat on the Copebras Consultative Board and has access to at least some of those documents, would have to testify in Brazil. But it appears clear that, given the chronological, geographic, economic and social considerations which underlie the disputes between these parties, the bulk of the pertinent evidence is to be found in Brazil.

Id. at 797-98.

In addition, the court noted that at least the claim of breach of fiduciary duty would be governed by Brazilian law,⁶ the thrust of which differs markedly from United States corporate laws:*

Furthermore, it appears from the 1976 amendments to the Brazilian corporation law that in its definition of a controlling shareholder’s responsibilities, an increased emphasis has been placed upon the corporation’s “social function,” within the context of the “community in which it acts”; a Brazilian corporation is now required to eschew purposes “detrimental to the national interest” or “the national economy.” ... These enactments implicate, to a significant degree, the public interest of Brazil in a proper resolution of the ongoing commercial disputes between these parties: an interest resulting from the fact that Copebras is a Brazilian corporation, doing business exclusively within Brazil.

Id. at 799.

Finally, and more importantly from the district court’s point of view, the court recognized that if it were to grant the injunctive relief requested by PPSA, which includes an injunction against depression of Copebras’s “true economic earnings,” it would be required to supervise the internal operations of a purely Brazilian corporation, subject to Brazilian law, Brazilian competitive conditions, and Brazilian political and social mores:

In my judgment, one of the most significant factors is the extent to which this Court’s judgment would impact upon, and purport to control, the internal affairs of Copebras, a Brazilian corporation. Cast in Gilbertian terms, this question implicates the enforceability of the court’s judgment, the degree of this community’s interest in and concern for the litigation, and the difficulties this Court might have in interpreting and applying Brazilian law: all factors to which the Supreme Court referred in Gilbert.

* * * * * *

[T]he injunctive relief requested by Panama, if granted, would involve this Court in the continued monitoring of the operations of a foreign corporation.... Panama seeks an order mandating Cities to cause Copebras, a Brazilian corporation, to conduct its internal and fiscal affairs in a manner consistent with Panama’s perception of the parties’ obligations. In short, this action impacts directly upon the accounting practices, expansion, and dividend policies of a foreign corporation: vital operating concerns.

Id. at 793, 795.⁷

The court also considered PPSA’s contentions that its chief officer was in New York and that it had its own documents here, and the argument that it would be difficult in Brazil to compel Cities’ officials to testify as to their acts in causing Copebras to adopt its challenged accounting methods and business practices. The district judge noted that Cities does not deny its control over the affairs of Copebras and concluded that PPSA’s prima facie case should be provable, if at all, through available documentary evidence and proof of Brazilian conditions.

The court’s analysis led it to conclude that New York is an inappropriate forum for the present action. It therefore dismissed the complaint on the conditions that Cities agree (1) to accept service of process in Brazil, (2) to waive any statute of limitations defense that might have arisen since the commencement of the present action, and (3) to pay any judgment that might be rendered against Cities in the Brazilian court. Cities filed its written consent to these conditions, and judgment dismissing the action was entered accordingly. This appeal followed.

DISCUSSION

It is well established that an appellate court should not reverse a district court’s dismissal for forum non conveniens unless the dismissal constituted an abuse of discretion. Thus, in Alcoa Steamship Company v. M/V Nordic Regent, supra, we stated as follows:

The Supreme Court in Gilbert made it very clear that application of the doctrine of forum non conveniens left a large measure of discretion to the trial judge:

“Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to result in many abuses.” 330 U.S. at 508, 67 S.Ct. at 843 (footnote omitted).

The Court wisely declined to try to define an all-purpose rule. It did set forth the relevant factors to be taken into account. The Court thus necessarily placed heavy reliance on the discretion of the trial judge to balance those factors. Restatement (Second) of Conflict of Laws § 84, Comment b (1971).

654 F.2d at 158. In Farmanfarmaian, supra, we described the district court’s discretion as “wide” and indicated that it is not to be disturbed absent a “ ‘clear showing’ of abuse.” 588 F.2d at 882; Calavo Growers v. Generali Belgium, 632 F.2d 963, 965, 966 (2d Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 871, 66 L.Ed.2d 809 (1981).⁸

The factors that should inform the district court’s exercise of its discretion include the private interests of the litigants, such as the relative ease of access to sources of evidence, the availability of witnesses, and the enforceability of a judgment if one is obtained. Gilbert, supra, 330 U.S. at 508, 67 S.Ct. at 843. They also include such “public interest” factors as the remoteness of the forum from the situs of the pertinent affairs and the forum court’s need to apply unfamiliar principles of foreign law. Id. at 508-09, 67 S.Ct. at 843-44. The district court recognized that it must consider these and other appropriate factors, and recognized as well that “ ‘ “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”’” 500 F.Supp. 787, 791, quoting Alcoa, supra, which quoted Gilbert, supra. See Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62, 65 (2d Cir. 1981); Calavo Growers v. Generali Belgium, supra, 632 F.2d at 969 (Newman, J., concurring).

As is apparent from our description of its decision, the district court painstakingly evaluated the parties’ arguments and factual contentions in light of the appropriate considerations. Our own review, given, on the one hand, the deference due the plaintiff’s choice of forum, and on the other, the minimal contacts of the dispute with New York, the heavy involvement and significant interests of the Republic of Brazil, the lack of any United States operations by the corporation whose nonpayment of dividends is at issue, and the possibility that the court would be required to supervise these Brazilian operations on a continuing basis under unfamiliar principles of Brazilian law in a changing Brazilian economic, political, and industrial climate, persuades us that there was no abuse of discretion in the court’s determination that New York is not an appropriate forum and its conditional dismissal of the action.

Our recent decision in Manu International, S.A. v. Avon Products, Inc., supra, does not require a different conclusion. In Manu, the plaintiff sought damages in the Southern District of New York against a New York corporation whose principal offices were in New York, on account of a fraud alleged to have taken place in New York; we reversed the district court’s dismissal for forum non conveniens because we found that the court had clearly abused its discretion. The present case differs from Manu in several fundamental respects. There are obvious differences in the defendant’s domicile, the situs of the tort, and the nature of the relief sought. In addition, in the present case there is at best one witness, PPSA’s chief executive officer, who resides in New York; in Manu there were several such witnesses. And, perhaps most importantly, in Manu, we found that the alternative forum, Taiwan, had no greater interest than New York in how the case was decided, whereas here, the Brazilian courts will have significant economic and political interests at stake. For example, Brazilian exchange control laws restrict the amount of dividends that may lawfully be paid to a foreign shareholder such as PPSA, a factor that gives Brazil an interest in the amount of any monetary recovery by PPSA. Moreover, Brazil imposes on its corporations a duty to perform a social function. This must impact the corporation’s “corporate objectives” and its operations, and thus its ability and responsibility to pay dividends, affecting not only the parties’ respective rights and duties under the 1965 Agreement, but also the court’s ability to fashion the injunctive relief requested by PPSA.

Finally, we mention in passing that at oral argument of this appeal, PPSA suggested that if the Court were concerned about the problems attendant upon the continuing supervision by a United States court of a Brazilian corporation, we might “deem” the request for injunctive relief withdrawn. This offer was not made to the district court, and we decline to accept it here. We review the district court’s exercise of its discretion on the basis of the facts, claims, and contentions that were presented to that court, and not on the basis of new conditions tendered on appeal.

The conditional dismissal for forum non conveniens is affirmed.

1 . The 1965 Agreement continued as follows:

Any declaration or omission of dividend will be voted only after full consultation and, if possible, agreement with all minority shareholders.

Columbian will not cause Copebras or its subsidiaries to undertake any further expansion of its productive capacities beyond what has already been approved as of this date, unless dividends to the extent of at least 50% of each year’s net income after taxes, cumulative starting with the calendar year 1964, have been paid, unless such expansion has been approved by Panama Processes and such cumulative dividends have been waived. The provision of this paragraph shall not be applicable to carbon black operations to the extent of $1,500,000 in the event a competitive carbon black plant is not in operation by December 31, 1967.

At such time when Celanese Corporation of America (Celanese) ceases to have representation on Copebras’ Consultative Board, Panama Processes will be permitted to designate one additional individual to have representation on Copebras’ Consultative Board. Further, Panama Processes shall have the right at the next stockholders’ meeting of Copebras, with the approval of Celanese, to designate one additional individual to have representation on Copebras’ Board of Directors.

Columbian will not transfer its stock in Copebras unless the transferee thereof agrees to assume all the obligations of the transferor under this agreement. The obligations of Columbian under this letter will terminate in the event Panama Processes’ interest in Cope-bras becomes less than 15%.

2 . The 1965 Agreement was also the subject of inconclusive litigation here in 1973. See Panama Processes S.A. v. Cities Service Company, 362 F.Supp. 735 (S.D.N.Y.1973), aff’d, 496 F.2d 533 (2d Cir. 1974).

3 . Cities also moved to dismiss under Fed.R. Civ.P. 19 for failure to join an indispensable party, on the ground that since 1973 its former Copebras stock interest has been owned by Citco do Brasil, which has not been made a party here. This question is not involved in the present appeal.

4 . PPSA also argues that the 1965 Agreement was, by agreement, to be enforced in the New York courts, quoting the following language:

The substance, validity, construction, performance and effect of this contract shall be governed by the laws of the State of New York, and any legal proceeding hereunder shall be brought in the courts of the State of New York.

This provision, however, did not appear in the 1965 Agreement. It is to be found only in a 1967 agreement among PPSA, Columbian, and Celanese with regard to the sale of Celanese’s stock to Copebras, superseding the original stock sale agreement among the three in 1965, which apparently had not been performed. Even the earlier agreement among the three contained no choice of forum clause, but only a provision that the interpretation of that contract was to be governed by New York law.

5 . The court found these facts to be a significant difference from the situation in Hoffman v. Goberman, 420 F.2d 423 (3d Cir. 1970), in which the court of appeals reversed a forum non conveniens dismissal of an action between two United States stockholders of a corporation organized under the laws of the Netherlands Antilles. In Hoffman, the court noted that the action did “not involve the policy or management of the corporation,” id. at 426, and “only collaterally involvefd] the corporation.” Id. at 427.

6 . We note that, despite PPSA’s present arguments that New York law will control this action, its complaint “reserve[d] the right to claim the benefit of the laws of the Republic of Brazil insofar as .the provisions of those laws may be applicable to any issue in this action,” pursuant to Fed.R.Civ.P. 44.1 which requires that “[a] party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings .... ”

7 . This concern is consistent with the Supreme Court’s observation in Williams v. Green Bay & Western Railroad Co., 326 U.S. 549, 66 S.Ct. 284, 90 L.Ed. 31 (1946), that

[t]he relief sought against a foreign corporation may be so extensive or call for such detailed and continuing supervision that the matter could be more efficiently handled nearer home. The limited territorial jurisdiction of the federal court might indeed make it difficult for it to make its decree effective. Id. at 555-56, 66 S.Ct. at 286-87 (dictum) (footnotes omitted).

8 . Although the court’s jurisdiction over the present action is based on diversity of citizenship, we need not determine whether, under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we must apply New York law, since the federal and New York rules appear to be the same. See Gilbert, supra, 330 U.S. at 509, 67 S.Ct. at 843; Alcoa, supra, 654 F.2d at 154.