Patrick De Borja v. Enrique Razon, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 3, 2020
• Docket: 19-35905
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 3 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICK R. DE BORJA, individually; No. 19-35905 MAKILING FARMS, INC., a Philippine corporation, D.C. No. 3:18-cv-01131-YY

Plaintiffs-Appellants, MEMORANDUM* v.

ENRIQUE R. RAZON, Jr., individually; INTERNATIONAL CONTAINER TERMINAL SERVICES, INC., a Philippine corporation; ICTSI OREGON, INC., an Oregon corporation; DOES, John and/or Jane Does 1-20,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Submitted October 28, 2020** Portland, Oregon

Before: GRABER, CLIFTON, and IKUTA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Plaintiffs, in this civil action, allege fraud in connection with ownership

interests in International Container Terminal Services, Inc. (“ICTSI”), a

Philippines company. Both parties agree that the laws of the Philippines govern

this lawsuit. The only connections this case has to the United States is the

citizenship of de Borja and one subsidiary of ICTSI. The only connection to

Oregon is the one subsidiary, ICTSI Oregon, Inc., which was formed in 2010, 20

years after the alleged fraud occurred.

The district court dismissed the action under the doctrine of forum non

conveniens, among other grounds. The court also denied Plaintiffs’ other pending

motions including a motion for jurisdiction-related discovery. Plaintiffs timely

appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. We reverse a district court’s decision to refuse jurisdiction-related

discovery only “on the clearest showing . . . [of] actual and substantial prejudice to

the litigant . . . .” Cheng v. Boeing Co., 708 F.2d 1406, 1412 (9th Cir. 1983)

(citation and quotation marks omitted). The district court had sufficient

information to conduct the forum non conveniens analysis, including determining

whether the Philippines was an adequate forum and balancing the public and

private interests. The allegations in the complaint, as well as the declaration by de

Borja, sufficiently show the case’s lack of ties to Oregon and the Plaintiffs’ desire

2 to forum shop. The requested jurisdiction-related discovery would not have aided

the court with the forum non conveniens analysis. Accordingly, the district court

did not err in denying jurisdiction-related discovery.

2. “A forum non conveniens determination is committed to the sound

discretion of the district court.” Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143

(9th Cir. 2001) (citations omitted). We reverse only for “a clear abuse of

discretion.” Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1178 (9th Cir.

2006) (quoting Lueck, 236 F.3d at 1143). No such abuse of discretion is present

here. As a preliminary matter, “the court properly [took] the less burdensome

course” and resolved the case on forum non conveniens grounds, without

adjudicating the difficult jurisdictional questions. Sinochem Int’l Co., Ltd. v.

Malaysia Int’l Shipping Corp., 549 U.S. 422, 436 (2007).

Further, the district court properly determined the Philippines to be an

appropriate alternative forum, conducted a reasonable analysis of the public and

private interest factors, and gave the appropriate deference to Plaintiffs’ choice of

forum. See Ayco Farms, Inc. v. Ochoa, 862 F.3d 945, 948–951 (9th Cir. 2017)

(per curiam). Contrary to Plaintiffs’s argument, the magistrate did not “improperly

shift[] the burden”: Defendants passed the “easy” test of demonstrating that the

Philippines is an adequate forum by presenting an expert declaration and citing to

3 cases in which the Philippines was deemed to be an adequate forum. See Tuazon,

433 F.3d at 1178. Plaintiffs did not show that the unique circumstances made the

Philippines an inadequate forum given the legal expert reports, the past cases

against the Razon family, and the ongoing estafa case against Razon Jr. See id. at

1178–80 (shifting the burden of proving corruption to the plaintiff after the

adequacy of the foreign forum was shown by the defendant). Plaintiffs’ general

reference to the power of the Razon family does not meet the required “powerful

showing that includes specific evidence” to demonstrate an inadequate forum due

to corruption. Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1234–35

(9th Cir. 2011) (cleaned up).

The district court considered all the public and private interest factors and

properly held the balancing “strongly favor[s] dismissal under the doctrine of

forum non conveniens.” The district court evaluated all the factors, even though

some did not have specific section headings. This case arose out of allegedly

fraudulent transactions that were contemplated and executed in the Philippines by

Philippine citizens and corporations, concerned Philippine stocks and assets, and

involved Philippine government entities. De Borja does not reside in Oregon. And

ICTSI Oregon is merely a nominal defendant in the case; Plaintiffs’ alter ego

argument regarding ICTSI Oregon is inapposite because the alter ego doctrine goes

4 to personal jurisdiction, not forum non conveniens analysis. Ranza v. Nike, 793

F.3d 1059, 1073 (9th Cir. 2015).

The district court did not err by giving “very little deference” to Plaintiffs’

choice of forum because the case lacked ties to the forum and Plaintiffs

participated in forum-shopping. See Vivendi SA v. T-Mobile U.S.A. Inc., 586 F.3d

689, 693–95 (9th Cir. 2009) (holding that “reduced deference” was proper when

there was no showing that the fraud was connected to a U.S. entity and there was

evidence of forum-shopping).

3. Finally, the district court did not err in dismissing the case without

conditions. The types of conditions courts sometimes place on forum non

conveniens dismissals would be inappropriate here. See Carijano, 643 F.3d at

1234–35 (discussing statute of limitations waivers and assurances of judgment

satisfaction as proper conditions on dismissal). There is no reason to believe that

Defendants will not submit to the jurisdiction of a court in the Philippines, as they

are already submitting to jurisdiction in the estafa case. Further, any award would

have to be enforced by a court in the Philippines, be it an award by a court in the

United States or in the Philippines.

AFFIRMED.