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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12806 ________________________
D. C. Docket No. 0:17-cv-60027-UU
PETER J. NYGÅRD, NYGÅRD INTERNATIONAL PARTNERSHIP, and NYGÅRD, INC.,
Plaintiffs – Appellants,
versus
JOHN J. DIPAOLO and THE D&R AGENCY, LLC,
Defendants – Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________ (October 10, 2018) Before WILLIAM PRYOR and MARTIN, Circuit Judges, and HALL, * District Judge.
HALL, District Judge:
* Honorable J. Randal Hall, United States District Judge for the Southern District of Georgia, sitting by designation. Case: 17-12806 Date Filed: 10/10/2018 Page: 2 of 28
Plaintiffs appeal the district court’s decision granting Defendants’ motion to
dismiss. The question on appeal is whether the district court abused its discretion
by dismissing this case on forum non conveniens grounds. Having reviewed the
record and the parties’ briefs, we affirm.
I. BACKGROUND
Plaintiff Peter J. Nygård is a Canadian citizen residing in the Bahamas who
owns Plaintiffs Nygård, Inc., a Delaware corporation with its primary headquarters
in New York, New York, and Nygård International Partnership, a Canadian
business. Plaintiffs design women’s clothing which they sell throughout the
United States.
The facts of this case largely surround a series of lawsuits that were initiated
by and against Mr. Nygård. The first action was filed on March 9, 2016, in the
Supreme Court of the Commonwealth of the Bahamas (the “Harassment Action”).
The Harassment Action plaintiffs are Bahamian environmentalists, including Louis
Bacon, Frederick Smith, and C.B. Moss, who claim that they were attacked by Mr.
Nygård and his agents after the plaintiffs protested Mr. Nygård’s development of
his Bahamian residence, Nygård Cay. Those attacks allegedly came in the form of
acts of violence, such as: (1) attacking Mr. Smith in April 2013; (2) fire-bombing
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Mr. Moss’s car in July 2013; and (3) plotting to murder Messrs. Smith and Bacon
in February 2014.
In response to the Harassment Action, Mr. Nygård filed a separate lawsuit
in the Bahamas on March 29, 2016 (the “Conspiracy Action”), alleging that the
Harassment Action plaintiffs, among others, conspired to collect and file perjured
testimony in the form of an affidavit that was prepared by Defendant John J.
DiPaolo, a private investigator in Florida, and his investigative firm, Defendant the
D&R Agency, LLC (“D&R”) (the “DiPaolo Affidavit”).1
On January 16, 2015, Mr. Bacon, who is a plaintiff in the Harassment Action
and a defendant in the Conspiracy Action, filed a lawsuit against Mr. Nygård for
defamation in the Supreme Court of New York County, New York (the “New
York Action”). Mr. Bacon asserted that he was the victim of a smear campaign in
the Bahamas that was allegedly orchestrated by Mr. Nygård. On August 10, 2016,
the New York Supreme Court dismissed the New York Action on forum non
conveniens grounds, finding that the Bahamas was a more suitable forum. That
order was subsequently reversed, however. See Bacon v. Nygard, 160 A.D.3d 565
(N.Y. App. Div. 2018).
In the present action, Plaintiffs allege that Mr. Bacon, who is not named as a
defendant, hired Mr. DiPaolo and D&R, to find witnesses to provide perjured
1 Mr. Nygård did not name Mr. DiPaolo or D&R as defendants in the Conspiracy Action. 3 Case: 17-12806 Date Filed: 10/10/2018 Page: 4 of 28
testimony that could be used in the Harassment and New York Actions.
Defendants in turn hired Livingston Bullard and Wisler Davilma, two Bahamian
criminals, to make sensational statements that Mr. Nygård had engaged in criminal
activities throughout the Bahamas. For example, Messrs. Bullard and Davilma
testified that Mr. Nygård “prepared a hit list to murder persons . . . [and] paid
Messrs. Bullard and Davilma to burn down a shop and automobile.” These
statements were used as a foundation for the DiPaolo Affidavit which was then
filed in the New York and Harassment Actions. Messrs. Bullard and Davilma
subsequently recanted their statements and told Plaintiffs’ attorneys that they were
hired by Mr. DiPaolo to make false statements against Mr. Nygård. 2
In addition to the false statements, Plaintiffs allege that Mr. Bacon hired
Tazhmoye Lacy-Ann Cummings, Samantha Storr, and Philincia Cleare to extort
funds from Plaintiffs. The three allegedly threatened to participate in Mr. Bacon
and Defendants’ criminal enterprise if they were not each paid between $500,000
and $800,000.
Plaintiffs claim that they have suffered serious financial harm due to
Defendants’ criminal enterprise. In addition to the litigation costs incurred through
the Harassment and New York Actions, Plaintiffs claim that Defendants have
damaged Plaintiffs’ reputation throughout the United States. The damage to
2 Despite this recantation, Messrs. Bullard and Smith later gave additional statements to Defendants. 4 Case: 17-12806 Date Filed: 10/10/2018 Page: 5 of 28
Plaintiffs’ reputation led to the loss of a longtime lending partner who severed ties
with Plaintiffs, citing the negative media coverage surrounding the allegations
against Mr. Nygård in the Harassment Action.
Plaintiffs initiated this action on January 5, 2017, in the United States
District Court for the Southern District of Florida, alleging that Defendants have
engaged in a criminal enterprise, in violation of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”) 18 U.S.C. § 1962, et seq., with the purpose of
spreading false information about Plaintiffs. Defendants subsequently moved to
dismiss Plaintiffs’ complaint for forum non conveniens, or, in the alternative, for
the district court to abstain from hearing this matter while the Harassment and
Conspiracy Actions proceed. The district court found that because Defendants
agreed to submit themselves to the jurisdiction of the Bahamas, the Bahamas was
an adequate alternative forum. The district court then balanced the private and
public interest factors and concluded that those factors weighed in favor of
dismissal. The district court finally concluded that Plaintiffs would be able to
reinstate their complaint in the Bahamas without undue prejudice or
inconvenience. Accordingly, on May 22, 2017, the district court granted
Defendants’ motion to dismiss on forum non conveniens grounds. Plaintiffs appeal
the district court’s order.
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II. STANDARD OF REVIEW
“The forum non conveniens determination is committed to the sound
discretion of the trial court. It may be reversed only when there has been a clear
abuse of discretion; where the 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 Aircraft Co. v. Reyno, 454 U.S. 235, 257
(1981). Abuse of discretion is “extremely limited” and “highly deferential.”
Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283, 1288 (11th Cir.
2009). “Thus, when employing an abuse-of-discretion standard, we must affirm
unless we find that the district court has made a clear error of judgment, or has
applied the wrong legal standard.” United States v. Frazier, 387 F.3d 1244, 1259
(11th Cir. 2004). Notably, “the abuse of discretion standard of review recognizes
that for the matter in question there is a range of choice for the district court and so
long as its decision does not amount to a clear error of judgment we will not
reverse even if we would have gone the other way had the choice been ours to
make.” McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001).
III. DISCUSSION
In this appeal, Plaintiffs argue that the district court erred by refusing to
allow them to engage in additional discovery, failing to afford substantial
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deference to their choice of forum, and adopting an overly narrow interpretation of
their complaint. Plaintiffs contend that these errors skewed the district court’s
balance of the private and public interest factors in its forum non conveniens
analysis.
A. Discovery
Plaintiffs complain that they were not given sufficient opportunity to engage
in discovery to develop their claims. Specifically, Plaintiffs insist that additional
discovery was needed to reveal information about potential witnesses in the United
States, including the location of Defendants’ alleged California confederates, who
Plaintiffs now claim include private investigators that were tasked with carrying
out Defendants’ criminal enterprise. 3 We review the district court’s denial of
discovery for abuse of discretion. White v. Coca–Cola Co., 542 F.3d 848, 853
(11th Cir. 2008).
When a motion to dismiss is not confined to the face of the pleadings, the
parties are sometimes allowed to engage in limited discovery. See, e.g.,
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978) (finding that
discovery was appropriate “where issues arise as to jurisdiction or venue.”); Eaton
v. Dorchester Dev., Inc., 692 F.2d 727, 729 (11th Cir. 1982) (“We have held that
such jurisdictional discovery is not entirely discretionary, and this appears to be the
3 This allegation appears nowhere in Plaintiffs’ complaint. 7 Case: 17-12806 Date Filed: 10/10/2018 Page: 8 of 28
better view.”). Nevertheless, “[s]uch discovery requests should not serve as
fishing expeditions,” and are therefore only appropriate when a party demonstrates
that it can supplement its allegations through discovery. Wolf v. Celebrity Cruises,
Inc., 683 F. App’x 786, 792 (11th Cir. 2017) (affirming denial of jurisdictional
discovery where request did not specify the information sought or explain how it
would “bolster” jurisdictional allegations). Additionally, if there is a pending
motion, a party must take reasonable efforts to warn the district court that more
discovery is needed before that motion can be resolved. See United Tech. Corp. v.
Mazer, 556 F.3d 1260, 1280–81 (11th Cir. 2009) (affirming dismissal where
plaintiff “never formally moved the district court for jurisdictional discovery but,
instead, buried such requests in its briefs . . . .”).
In the instant case, Plaintiffs contend that they served discovery regarding
“critical facts” related to forum non conveniens on March 28, 2017, about ten days
before Defendants filed their motion to dismiss and two months before the district
court entered its order. If Plaintiffs believed Defendants had evidence that was
critical to deciding the forum non conveniens issue, it was incumbent upon them to
notify the district court about the evidence they sought and its potential impact on
deciding Defendants’ motion. Yet, beyond a vague reference that there might be
witnesses located in California, which was buried in a footnote in Plaintiffs’
response in opposition to Defendants’ motion to dismiss, Plaintiffs failed to take
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such action. “The district court, therefore, did not so much deny discovery as it
dismissed the case before discovery was taken. We cannot say that the district
court erred,” Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 n.7 (11th Cir. 1999),
much less abused its discretion.
B. Deference to Plaintiffs’ Choice of Forum
Moving on to the district court’s analysis of the forum non conveniens issue,
Plaintiffs contend that the district court failed to afford substantial deference to
their choice of forum when it balanced the private interest factors. When a
plaintiff sues in his home forum, “it is reasonable to assume that this choice is
convenient.” Piper Aircraft, 454 U.S. at 255-56. To overcome the presumption
against disturbing the plaintiff’s choice of forum, this Circuit has long mandated
that district courts must find “positive evidence of unusually extreme
circumstances, and should be thoroughly convinced that material injustice is
manifest before exercising any such discretion as may exist to deny a United States
citizen access to the courts of this country.” La Seguridad v. Transytur Line, 707
F.2d 1304, 1308 n.7 (11th Cir. 1983) (alterations adopted and internal quotation
marks omitted). When the plaintiff sues in a foreign venue, on the other hand, the
assumption of convenience is much less reasonable. Piper Aircraft, 454 U.S. at
256. Therefore, a foreign plaintiff’s choice of forum deserves less deference. La
Seguridad, 707 F.2d at 1307.
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The district court decided that because Plaintiffs, one of which is a United
States corporation, were foreign to Florida, their choice of forum was entitled to
less deference. Yet, to determine whether a party is suing in his home forum,
federal courts focus on the plaintiff’s country of origin, not the state in which he
resides. Kostelac v. Allianz Global Corp. & Specialty AG, 517 F. App'x 670, 673-
74 (11th Cir. 2013) (“When a United States citizen sues in a United States District
Court, he is suing in his home forum.”); Aldana, 578 F.3d at1293 (“[T]he relevant
forum for purposes of the federal [forum non conveniens] analysis is the United
States as a whole.”). Because the district court based its decision on Plaintiffs’
out-of-state residence, we cannot support its finding that Plaintiffs’ choice of
forum was entitled to less deference.
Nevertheless, the district court subsequently explained that “even if
Plaintiffs were entitled to substantial deference, the Court would still dismiss this
case on forum non conveniens grounds for reasons set forth herein.” Plaintiffs
contend that the district court merely referenced the correct standard and did not
apply substantial deference to Plaintiffs’ choice of forum in its analysis. We
cannot say that such an error warrants reversal under the facts of this case. In cases
where we have reversed the district court for failing to give substantial deference to
the plaintiff’s choice of forum, the district court failed to even apply a weak
presumption in its analysis. SME Racks, Inc. v. Sistemas Mecanicos Para
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Electronica, S.A., 382 F.3d 1097, 1103 n.9 (11th Cir. 2004) (“The presumption in
favor of the plaintiff simply was not applied.”); McLane v. Los Suenos Marriott
Ocean & Golf Resort, 476 F. App'x 831, 833 n.2, 833-34 (11th Cir. 2012) (“The
district court mentioned the presumption against disturbing the plaintiffs' forum
choice in its introduction to the order, but failed to mention the presumption at all
in its application and balancing of the factors.”). In SME Racks, for example, the
district court dismissed a complaint brought by a United States citizen on forum
non conveniens grounds despite finding that the private interest factors were “at or
near equipoise.” SME Racks, 382 F.3d at 1102. We reversed, reasoning in part
that there was no:
basis to speculate that the district court simply failed to mention the presumption in its application section, but nevertheless considered the presumption and determined that the presumption was defeated. If any presumption exists in favor of the plaintiffs' choice . . . then by definition the plaintiffs' choice must win if all other factors are equal.
Id. at 1103. In this case, unlike SME Racks or McLane, the district court at least applied
a weak presumption when it balanced the private interest factors. Nygård v.
DiPaolo, 2017 WL 4303825, at *12 (S.D. Fla. May 22, 2017) (“[W]hile the Court
accords Plaintiffs’ choice some deference, the overall balance [of the private
interest factors] tips toward the Bahamas.”). Thus, we are not left to speculate as
to whether a stronger presumption would have altered the district court’s analysis.
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Cf. McLane, 476 F. App’x at 834 (“Because it is unclear whether the district court,
applying the presumption correctly, would conclude that dismissal is nevertheless
appropriate, we reverse and remand for reconsideration.”). Because the district
court gave some deference to Plaintiffs’ choice of forum and made clear that
additional deference would not change its analysis, reversal is inappropriate.
C. Private Interest Factors
The district court proceeded to balance the private interest factors and found
those factors weighed in favor of dismissal. Private interest factors “pertain to the
interests of the participants in the litigation.” Tazoe v. Airbus S.A.S., 631 F.3d
1321, 1331 (11th Cir. 2011). The Supreme Court has provided a list of factors that
courts should consider when deciding a forum non conveniens issue, including:
[R]elative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.
Piper Aircraft, 454 U.S. at 241 n.6 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 508 (1947)).
1. Relative Ease of Access to Sources of Proof and Availability of Compulsory Process
The record supports the district court’s decision that access to sources of
proof “weighs strongly in favor of dismissal.” Plaintiffs complain that the district
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court adopted an overly narrow construction of their complaint and consequently
gave little weight to witnesses who reside in the United States. Plaintiffs insist that
according to their theory of the case, the Bahamas is only one part of a larger
criminal enterprise that was primarily located in New York and Florida. Yet, the
district court reasonably found that much of Defendants’ alleged misconduct took
place in or was at least directed toward the Bahamas. The Bahamas is where
Defendants met and hired Messrs. Wisler and Davilma, who are both Bahamian
residents, who provided the statements for the DiPaolo Affidavit. Additionally, the
Bahamas is home to other potentially relevant witnesses, including Neil Hartnell,
who made an allegedly false statement that was used in the DiPaolo Affidavit, and
Messrs. Smith and Moss, who are both plaintiffs in the Harassment Action. 4
Furthermore, although the district court may have mischaracterized the
scope of Plaintiffs’ complaint, it did consider the importance of witnesses in the
United States, including Defendants, Defendants’ employees, Mr. Bacon, Mr.
4 Plaintiffs take issue with the district court’s conclusion that Messrs. Hartnell, Smith, and Moss were potentially relevant witnesses. Plaintiffs claim that because Messrs. Hartnell, Smith, and Moss did not attempt to influence any witnesses against Plaintiffs, they have no valuable information. However, Messrs. Smith, Hartnell, and Moss all claim to be victims of an alleged campaign of violence that Plaintiffs insist was the fabrication of Defendants’ criminal enterprise. At the very least, their testimony appears valuable to Defendants’ ability to rebut Plaintiffs’ claims. See Tazoe, 631 F.3d at 1332 (“Our analysis must contemplate more than [Plaintiffs’] theories of liability; we must also consider [Defendants'] theories.”). 13 Case: 17-12806 Date Filed: 10/10/2018 Page: 14 of 28
Bacon’s lawyers, Jack Palladino, and Sarah Ness. 5 Defendants, however, have
made clear that they are willing to travel to the Bahamas. Likewise, Mr. Bacon is
currently engaged in litigation against Mr. Nygård in a Bahamian court. The
district court reasonably concluded that these witnesses would be available in the
Bahamas and therefore were afforded less weight when balancing the
consequences of trying this case in the Bahamas as opposed to the United States.
As for Mr. Palladino and Ms. Ness, who Plaintiffs claim are California
investigators hired by Defendants, Plaintiffs failed to identify these witnesses in
their complaint or briefing in response to Defendants’ motion to dismiss. While
these names were included in Plaintiffs’ initial disclosure, it is not the district
court’s duty to speculate about the relevance of unidentified evidence. 6 Thus, the
only witnesses in the United States who were entitled to much weight, for the
purposes of forum non conveniens, are Mr. Bacon’s lawyers in New York.
Comparing Mr. Bacon’s lawyers to the witnesses located in the Bahamas, we
cannot conclude that the district court abused its discretion by finding that the
Bahamas offers superior access to sources of proof.
With the exception of Defendants, who are willing to appear in the
Bahamas, the Southern District of Florida lacks the authority to compel the 5 Plaintiffs have not challenged the district court’s finding that Defendants’ employees should not be “accord[ed] great weight.” When an appellant fails to argue an issue, that issue is abandoned. United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998). 6 This reasoning is equally applicable to Ms. Patricia Scandariato, a court reporter who recorded the statements made by Mr. Bullard in Miami, Florida. 14 Case: 17-12806 Date Filed: 10/10/2018 Page: 15 of 28
presence of most of the witnesses in this case. Mr. Bacon and his lawyers both
reside outside of Florida and the 100 mile bulge prescribed by Federal Rule of
Civil Procedure 45(c) as do all of the Bahamian witnesses. Therefore, none of
these witnesses are subject to the district court’s compulsory process. Plaintiffs
protest that any valuable information these witnesses have can be obtained through
depositions or interrogatories. As an initial matter, we note the strong preference
for live testimony where, as here, fraud and subjective intent are elements of the
claim. See Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 952 (1st Cir. 1991). The
availability of compulsory process is especially important to secure the attendance
of Messrs. Bullard and Davilma, who Plaintiffs allege were instrumental to
Defendants’ criminal enterprise. Messrs. Bullard and Davilma have apparently
recanted their testimony at least two times before Plaintiffs initiated this action.
Demeanor evidence will therefore be invaluable in assessing Messrs. Bullard and
Davilma’s credibility. Under these facts, depositions and written answers to
interrogatories would be a poor substitute for live testimony. Because live
testimony will be essential to both parties and the Southern District of Florida lacks
a compulsory process to guarantee the attendance of many of the witnesses in this
case, this factor also favors dismissal. 7
7 Plaintiffs also take issue with the district court’s finding that “[o]ther undiscovered percipient witnesses to Nygård’s and his agents’ misconduct . . . are also likely to be in the Bahamas.” We agree that this was an error. Because Defendants’ enterprise was operated out of Florida and 15 Case: 17-12806 Date Filed: 10/10/2018 Page: 16 of 28
2. Cost of Procuring Willing Witnesses
The district court also found that the parties would save considerable sums
by obtaining testimony from Bahamian witnesses in the Bahamas rather than
requiring those witnesses to fly to the United States. Plaintiffs contend that the
district court erred by considering this factor because Defendants did not submit
evidence regarding travel costs. We find no error in the district court’s common
sense finding that forcing Bahamian witnesses to travel to the United States would
impose a cost that could otherwise be avoided if this dispute is litigated in the
Bahamas.
Plaintiffs also claim that the district court was required to consider the cost
of requiring witnesses in the United States to travel to the Bahamas as opposed to
Florida. The district court did, however, acknowledge that Plaintiffs did not
identify any witnesses, besides Defendants, who reside in Florida. Requiring the
witnesses in the United States, who are mostly residents of New York, to attend
trial in the Bahamas would not impose a substantially greater burden than requiring
them to travel to Florida. See Goldstein v. Hard Rock Cafe Int'l (USA), Inc., 519
F. App'x 653, 655 (11th Cir. 2013) (affirming district court’s conclusion that there
was little difference in travel costs by making witnesses fly from New Jersey to
New York, it seems just as likely that undiscovered witnesses might be revealed in the United States. Nevertheless, even ignoring the possibility of undiscovered Bahamian witnesses, for the reasons stated above, we still cannot find that the district court abused its discretion when it concluded that compulsory process weighs in favor of dismissal. 16 Case: 17-12806 Date Filed: 10/10/2018 Page: 17 of 28
Florida as opposed to New Jersey to the Dominican Republic). Accordingly,
comparing the cost of flying Bahamian witnesses to the United States to the cost of
flying witnesses from New York to the Bahamas, as opposed to Florida, the district
court’s finding that cost of attendance weighs in favor of dismissal was not a clear
abuse of discretion.
3. Possibility of Viewing the Premises
The district court briefly considered the value of viewing the premises. It
found that the possibility of viewing the premises where Defendants’ alleged
criminal enterprise engaged in misconduct could be valuable but it did not accord
this factor much weight. Plaintiffs maintain that according any weight to this
factor was an error because this “is not a tort case where the layout of a particular
area may be relevant.” Given that the misconduct in this case involved allegations
of violence and at least two incidents of property damage, we cannot find that there
is zero chance that a view of the premises will be helpful in trying this case. The
misconduct that occurred in the United States, by comparison, mostly involved
phone calls, bank transfers, court filings, and witness statements, which can most
easily be proven by documentary evidence and testimony and would therefore not
be helped by a view of the premises. We discern no abuse of discretion in
affording some weight to this factor in favor of dismissal.
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4. Additional Factors
In addition to the non-exhaustive list of private interest factors identified by
the Supreme Court, courts are “free to consider any number of other practical
problems that make trial of a case in a particular forum an undue burden upon
either party.” Aldana, 578 F.3d at 1302. Here, the district court found that judicial
economy, the risk of inconsistent results, and the cost of domesticating a Bahamian
judgment were all practical problems that further complicated trying this case in
the United States.
Regarding judicial economy, the district court found that the existence of
parallel proceedings in the Bahamas weighs in favor of dismissal. As previously
mentioned, in the Conspiracy Action, Mr. Nygård alleges that Mr. Bacon, with
help from Defendants, conspired to file perjured information in the Harassment
Action. Though we accept that Plaintiffs’ allegations in this case are not limited to
filings in the Harassment Action, Defendants’ role in the Conspiracy Action is
strikingly similar to its role in the present case. Plaintiffs insist that the existence
of parallel litigation is not a relevant factor in a forum non conveniens analysis.
Yet we have previously found that concurrent litigation can be a practical problem
that is properly considered when balancing the private interest factors. See King v.
Cesna Aircraft Co., 562 F.3d 1374, 1384 (11th Cir. 2009) (affirming district
court’s finding “that some Plaintiffs have already litigated and continue to litigate a
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similar suit in Italy” weighed in favor of dismissal); see also Sinochem Int’l Co. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 424 (2007) (describing the case as “a
textbook case for immediate forum non conveniens dismissal,” where litigation
was already pending in China). If this case is allowed to proceed in the Bahamas,
Defendants can attempt to consolidate these matters, saving time and resources for
both parties. See RULES OF THE SUPREME COURT OF THE BAHAMAS, OR. 4, R. 1.
Such a consideration conforms to the overarching purpose of the forum non
conveniens doctrine.
The district court also found that allowing this case to proceed in the United
States would create the possibility of inconsistent results, as the Bahamian court
would eventually address the veracity of the DiPaolo Affidavit in the Conspiracy
Action. Again, Plaintiffs complain that their case is not limited to the DiPaolo
Affidavit and does not require proving that Defendants facilitated perjury.
However, one of the two predicate offenses in Plaintiffs’ RICO claim is 18 U.S.C.
§ 1956, a money laundering statute wherein Plaintiffs must demonstrate that
Defendants violated Bahamian law. According to Plaintiffs’ complaint, one of the
laws that Defendants allegedly violated is Bahamian Penal Code Chpt. 84, Title
xxvii, §§ 423, 424, which is a perjury statute. Although an inconsistent ruling is
not a foregone conclusion, there is a risk that a United States and Bahamian court
will reach opposite results on whether statements made in the DiPaolo Affidavit
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were actually false. Given the inconvenience to Plaintiffs of having to abide by
inconsistent rulings, this factor may not be critical but it was not unreasonable to
afford it some weight. 8
Finally, the district court decided that the cost of domesticating a judgment
also weighed in favor of dismissal because the Florida Enforcement of Foreign
Judgments Act, Florida Statute (“FEFJA”) §§ 55.601-607, provides a convenient
mechanism for enforcing foreign judgments against Florida residents. According
to the FEFJA, once a plaintiff records a foreign judgment “in the office of the clerk
of the circuit court of any county [in Florida],” it has the same effect as a judgment
issued by a Florida court. See FLA. STAT. 55.503(1). Plaintiffs claim that the
district court conflated the ability to enforce a judgment with the inconvenience of
having to do so. Though we agree that inconvenience of domesticating a
judgment, which would be unnecessary if this case was tried in the United States,
should have weighed against dismissal, this factor does not require reversal
because the inconvenience to Plaintiffs is minimal.
As explained above, the district court considered all of the relevant private
interest factors and found that they weighed in favor of dismissal. We do not find
8 Plaintiffs also object to the district court’s consideration of an injunction allegedly filed in the Harassment Action, demanding that Mr. Nygård abandon his claims in the present case. Plaintiffs complain that considering such actions could incentivize frivolous foreign filings. While we sympathize with Plaintiffs’ concerns, we cannot find that it was an abuse of discretion to at least give some weight to the possibility that Mr. Nygård might be enjoined from continuing to participate in this case. 20 Case: 17-12806 Date Filed: 10/10/2018 Page: 21 of 28
that the district court’s ultimate conclusion is unreasonable. This is not to say that
conclusion was the only reasonable one, or that another court could not have found
the United States was the appropriate forum. Instead, we only find that, with the
exception of the inconvenience of having to domesticate a foreign judgment, the
district court could reasonably find that the private interest factors in this case
weigh in favor of dismissal, even after assigning substantial deference to Plaintiffs’
choice of forum.
D. Public Interest Factors
The district court proceeded to balance the public interest factors and found
that most of these factors also weighed in favor of dismissal. Public interest
factors “pertain to the relative interests of the two fora.” Tazoe, 631 F.3d at 1333.
The public interest factors identified by the Supreme Court include:
[T]he administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.
Piper Aircraft, 454 U.S. at 240 n.6 (internal quotation marks omitted).
Regarding court congestion, the district court found that the docket
congestion of the Southern District of Florida favored dismissal. The district court
did not, however, consider the docket congestion of the Supreme Court of the
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Commonwealth of the Bahamas. Docket congestion considers the relative speed at
which a case will be resolved and therefore necessarily requires a comparison.
See, e.g., Mercier v. Sheraton Int'l, Inc., 935 F.2d 419, 428 (1st Cir. 1991)
(directing “a comparative determination of where the case can most quickly be
resolved, rather than simply rely[ing] on the state of [the district court's] own
docket.”); Gates v. Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984)
(same). Accordingly, even though the district court did not accord this factor much
weight, we cannot support its conclusion that the administrative difficulties
flowing from docket congestion support dismissing this case.
Moving on to the second factor, the district court also concluded that the
Bahamian interest in this case was greater than the United States without
considering the “strong federal interest in making sure that plaintiffs who are
United States citizens generally get to choose an American forum for bringing
suit.” See Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1311 (11th Cir. 2002).
Additionally, the district court reasoned that the Bahamian interest in this case was
paramount because Plaintiffs’ allegations involve a fraud on the Bahamian court in
the form of the DiPaolo Affidavit. This conclusion ignores that the DiPaolo
Affidavit was also filed in the New York Action, giving the United States an equal
interest in deciding this case. Thus, we cannot find that the local interest in this
case weighs in favor of the Bahamas.
22 Case: 17-12806 Date Filed: 10/10/2018 Page: 23 of 28
Despite the district court’s erroneous findings with respect to the first and
second public interest factors, we nevertheless find that the district court’s
conclusion that the public interest factors weigh in favor of dismissal was not an
abuse of discretion. Although the district court did not consider judicial economy
in its analysis of the public interest factors, the possibility of avoiding duplicative
litigation is a cognizable interest, distinct from the convenience to the parties,
which weighs in favor of dismissal. In re: Howmedica Osteonics Corp., 867 F.3d
390, 402 n.7 (3d Cir. 2017) (“[W]e clarify that practical problems that make trial of
a case easy, expeditious, and inexpensive represent a private interest, as the
Supreme Court stated in Atlantic Marine [Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49
(2013)] and as we have often stated in the forum non conveniens context, . . . we
acknowledge judicial economy considerations to be a distinct, cognizable public
interest.” (citations omitted)); see also Am. Family Life Assur. Co. v. Blue Cross
of Fla., Inc., 486 F.2d 225, 228 (5th Cir. 1973) (“[A] judgment which is correct in
ultimate effect will not be disturbed on appeal even if the lower court relied on the
wrong ground or gave an untenable reason for its decision[.]”). Likewise, we have
previously recognized that the possibility of inconsistent rulings with foreign
countries raises international comity concerns that should be considered in the
forum non conveniens analysis. See Esfeld, 289 F.3d at 1312. As previously
explained, allowing this case to proceed in the United States creates a risk of an
23 Case: 17-12806 Date Filed: 10/10/2018 Page: 24 of 28
inconsistent outcome with the Conspiracy Action in the Bahamas. Hence, though
the district court’s analysis was problematic, its ultimate conclusion that the public
interest factors in this case favor dismissal was not an abuse of discretion.
IV. CONCLUSION
For the reasons set forth above, we must affirm the district court’s decision
to dismiss this case for forum non conveniens. Though the district court made
mistakes in its analysis of the private and public interest factors, the cumulative
effect of those errors does not rise to the level of an abuse of discretion.
Accordingly, the district court’s order is AFFIRMED.
24 Case: 17-12806 Date Filed: 10/10/2018 Page: 25 of 28
MARTIN, Circuit Judge, dissenting:
I respectfully dissent from the Majority’s decision to affirm the District
Court’s dismissal of the plaintiffs’ case on grounds of forum non conveniens. This
federal law suit was brought by three plaintiffs, one a U.S. citizen, against two
defendants, both of whom appear to be U.S. citizens as well. 1 Yet in denying
plaintiffs access to their chosen venue of the U.S. federal courts, the District Judge
dismissed the plaintiffs’ lawsuit under the discretionary doctrine of forum non
conveniens. The Majority acknowledges that the District Court made errors in
reaching its decision. Maj. Op. at 24. Under this Court’s precedent, I believe
those errors constitute an abuse of discretion. Unlike the Majority, I would not
reweigh the interests balanced in a forum non conveniens analysis to determine if
the District Court’s result can be reached another way. I would remand this case
so the District Court could apply the proper standard in the first instance.
The district court failed to give the required strong presumption in favor of
plaintiffs’ choice of forum. SME Racks, Inc. v. Sistemas Mecanicos Para
Electronica, S.A., 382 F.3d 1097, 1099 (11th Cir. 2004). Before dismissing a case
1 One of these Defendants is a limited liability company, whose citizenship is determined, in turn, by the citizenship of its members. Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam). The District Court referred to only the company’s principal place of business. Nygard v. DiPaolo, No. 0:17-CV-60027-UU, 2017 WL 4303825, at *1 (S.D. Fla. May 23, 2017). 25 Case: 17-12806 Date Filed: 10/10/2018 Page: 26 of 28
on grounds of forum non conveniens, courts in this Circuit are required to balance,
among other things, certain private and public interests involved in the litigation.
Wilson v. Island Seas Invs., Ltd., 590 F.3d 1264, 1269 (11th Cir. 2009). This
balancing requires the court to identify those interests weighing in favor of
litigating the case in a domestic forum; identify those competing interests that
weigh in favor of litigating the case in a foreign forum; then balance the two. Id.
In this Circuit, the relevant domestic forum for this balancing analysis is “the
United States as a whole.” Aldana v. Del Monte Fresh Produce N.A., Inc., 578
F.3d 1283, 1293 (2009). But in this case, instead of using the United States as a
whole, the District Court used the State of Florida as the relevant domestic forum.
It was this mistake that led the District Court to wrongly decide that Plaintiff
Nygård, Inc., which is a citizen of Delaware and New York, was a foreign plaintiff.
And this mistake in turn caused the court to give Nygård, Inc.’s choice of forum
less deference. Thus, the District Court violated the rule requiring “the strong
presumption that a United States citizen will not be ousted from the courts of this
country.” SME Racks, 382 F.3d at 1099. This court has expressly held that the
failure to give this presumption to a U.S. plaintiff’s choice of forum is an abuse of
discretion. Id. I would reverse based on this error alone.
The Majority says reversal is not warranted because the District Court gave
“some deference” to the plaintiffs’ choice of forum, insofar as that court said more
26 Case: 17-12806 Date Filed: 10/10/2018 Page: 27 of 28
deference would not have changed its decision. Maj. Op. at 12. However,
plaintiffs’ choice of forum was entitled to more than “some” deference. Courts
owe “some” deference to the choice of forum of any plaintiff in a forum non
conveniens analysis, regardless of its citizenship. See Piper Aircraft Co. v. Reyno,
454 U.S. 235, 255 n.23, 102 S. Ct. 252, 266 n.23 (1981). With a U.S. plaintiff,
however, courts owe more deference. Id.; Leon v. Millon Air, Inc., 251 F.3d 1305,
1311 (11th Cir. 2001) (noting a stronger presumption applies in cases brought by
domestic plaintiffs and a weaker presumption applies in cases brought by foreign
plaintiffs). In light of the requirement that courts give more than some deference
to a U.S. plaintiff’s choice of forum, some deference is not enough.
In giving the proper level of deference and strength of presumption, a court
seeking to oust a U.S. citizen from the federal courts faces a high bar. See SME
Racks, 382 F.3d at 1099. I recognize that this District Court did mention the
standard it should have applied, but only at the end of a lengthy footnote, saying:
“[E]ven if Plaintiffs were entitled to substantial deference, the Court would still
dismiss this case on forum non conveniens grounds for reasons set forth herein.”
Nygard, 2017 WL 4303825, at *7 n.6. And the “reasons set forth herein” did not
meet the standard required in our Circuit. District Courts must “require positive
evidence of unusually extreme circumstances” and “be thoroughly convinced that
material injustice is manifest before exercising any such discretion as may exist to
27 Case: 17-12806 Date Filed: 10/10/2018 Page: 28 of 28
deny a United States citizen access to the courts of this country.” See Wilson, 590
F.3d at 1270 (quotation marks omitted). When the presumption in favor of the
plaintiffs’ choice of forums applies, dismissal is proper only where a court finds
that “trial in the chosen forum would be unnecessarily burdensome for the
defendant or the court.” Id. (emphasis added) (quoting Piper Aircraft, 454 U.S. at
255 n.23, 102 S. Ct. at 266 n.23). Nowhere did this District Court demonstrate
why this case involves such exceptional concerns.
As I read it, the Majority’s own analysis shows why remand is necessary.
The Majority opinion revisits nearly every decision the District Court made. It
notes errors in the District Court’s assessments along the way, then bases its
decision on a public interest factor never considered by the District Court. Maj.
Op. at 9–24. “[T]he proper role of the court of appeals is not to reweigh the
equities or reassess the facts but to make sure that the conclusions derived from
those weighings and assessments are [] sound and supported by the record.”
Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10, 100 S. Ct. 1460, 1466
(1980). I think the better course would be for the District Court do the proper
analysis in the first instance. And if the District Court had done the proper
analysis, I expect this case would have stayed in the U.S. District Court of
plaintiffs’ choosing.
I respectfully dissent.