USCA4 Appeal: 23-1882 Doc: 35 Filed: 07/16/2025 Pg: 1 of 23
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1882
TIBER CREEK PARTNERS, LLC,
Plaintiff - Appellant,
v.
ELLUME USA LLC; ELLUME LTD ACN 141767 660; DR. SEAN PARSONS, individually and in his capacity as officer and director of Ellume USA LLC and Ellume Ltd ACN 141767 660,
Defendants - Appellees,
and
JOHN DOES 1-10,
Defendants.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Michael Stefan Nachmanoff, District Judge. (1:23-cv-00148-MSN-JFA; 1:23-cv-00292-MSN-JFA)
Argued: September 25, 2024 Decided: July 16, 2025
Before WILKINSON, RICHARDSON, and RUSHING, Circuit Judges.
Affirmed by unpublished opinion. Judge Rushing wrote the majority opinion, in which Judge Wilkinson joined. Judge Richardson wrote a dissenting opinion. USCA4 Appeal: 23-1882 Doc: 35 Filed: 07/16/2025 Pg: 2 of 23
ARGUED: Jason P. Gosselin, FAEGRE DRINKER BIDDLER & REATH, Philadelphia, Pennsylvania. for Appellant. Stephen Modica Rees, COVINGTON & BURLING, LLP, Washington, D.C., for Appellees. ON BRIEF: Dawn B. Williams, FAEGRE DRINKER BIDDLE & REATH LLP, Washington, D.C., for Appellant. Andrew Soukup, Kevin B. Collins, COVINGTON & BURLING LLP, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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RUSHING, Circuit Judge:
Medical device company Ellume Ltd. declared bankruptcy under Australian law.
Tiber Creek Partners, LLC—an American company—then sued Ellume Ltd. and its
subsidiary, Ellume USA, LLC, in federal district court to recover unpaid consulting fees.
The district court dismissed Tiber Creek’s claims without prejudice under the doctrine of
forum non conveniens, finding them better suited for litigation in Australia. Because the
district court did not abuse its discretion, we affirm.
I.
Tiber Creek is a consulting firm in Virginia. Ellume Ltd. was an Australian
company that developed diagnostic healthcare products. Ellume Ltd. did business in the
United States through Ellume USA, a Delaware company with a manufacturing facility in
Maryland. These lawsuits arise from Tiber Creek’s work for the Ellume entities during the
COVID-19 pandemic.
The companies’ relationship began around 2014, when Ellume Ltd. sought funding
for a research initiative. Tiber Creek agreed to provide advice to Ellume Ltd. pursuant to
the 2014 Services Agreement and signed an accompanying non-disclosure agreement. The
2014 NDA provided that “the parties to this document irrevocably and unconditionally
submit to the exclusive jurisdiction” of Australian courts. J.A. 75. The project concluded
in less than a year.
Tiber Creek reconnected with Ellume Ltd. in 2020. In March, Tiber Creek’s
principal member, John Clerici, spoke with Sean Parsons, the chief executive officer of
both Ellume Ltd. and Ellume USA (which was formed in 2019). Parsons expressed an
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interest in expanding the company’s COVID-19 testing platform, and Tiber Creek agreed
to assist. Clerici and Parsons signed the 2020 Services Agreement in May. The 2020
Services Agreement referred to “Ellume” generally, without specifying whether it bound
the parent or subsidiary company. It also referenced “a Nondisclosure Agreement between
Tiber Creek Partners and Ellume,” which governed all information provided in connection
with the 2020 Services Agreement. J.A. 81–82.
With Tiber Creek’s help, Ellume USA secured funding from the United States
government to supply diagnostic tests. These awards allegedly included $30 million from
the National Institutes of Health Rapid Acceleration of Diagnostics initiative in October
2020 and nearly $232 million from the Department of Defense, in coordination with the
Department of Health and Human Services, in February 2021.
Ellume USA allegedly ran into financial hardship in the fall of 2021. By March
2022, Tiber Creek claims it was owed $4.7 million in consulting fees. Accordingly, in
August 2022, Ellume Ltd. and Tiber Creek entered a Deed of Variation, which modified
the 2020 Services Agreement. Under the Deed of Variation, Ellume Ltd. would make four
cash payments to Tiber Creek totaling $3,666,666. Any remaining amount due would then
be paid in unregistered securities, as Ellume Ltd. represented that it had plans to go public.
Tiber Creek and Ellume Ltd. agreed to submit to the non-exclusive jurisdiction of
Australian courts for all proceedings related to the Deed, which specified that it was
governed by Australian law.
Around the same time, Ellume Ltd. and Tiber Creek also executed the 2022 Services
Agreement. That contract contemplated the end of the 2020 Services Agreement,
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providing that “[u]pon the execution of this Agreement, the Initial Agreement will
terminate immediately.” J.A. 108. Like the Deed of Variation, the 2022 Services
Agreement specified that it was governed by Australian law and included an agreement to
submit to the non-exclusive jurisdiction of Australian courts.
A few weeks later, Ellume Ltd. entered voluntary administration in Australia, which
is the equivalent of Chapter 11 bankruptcy proceedings in the United States. Tiber Creek
submitted proofs of debt in the Australian proceedings, claiming that Ellume Ltd. owed
Tiber Creek around $9 million in unpaid consulting fees arising under the 2020 Services
Agreement, Deed of Variation, and 2022 Services Agreement.
In December 2022, Ellume Ltd.’s creditors voted to sell the company to a third-
party, Hough Consolidated Pty. Ltd. Ellume Ltd. and Hough Consolidated entered a Deed
of Company Arrangement (DOCA), which explained how Ellume Ltd.’s creditors would
be paid if the sale was consummated but also warned that Ellume Ltd. could be liquidated
if the deal fell through. The DOCA further stated that its terms bound creditors while
operational and forbade them to “begin, revive, continue or take any further steps in any
action, suit, mediation or proceeding against [Ellume Ltd.] or in relation to any of its
property.” J.A. 448.
Tiber Creek subsequently filed two lawsuits in the Eastern District of Virginia.
First, it sued Ellume USA for breach of contract in February 2023 (Ellume I). In that action,
Tiber Creek sought damages in the amount of overdue consulting fees plus interest and an
accounting to determine the exact amount owed. Tiber Creek also sought a declaratory
judgment that Ellume USA—not Ellume Ltd.—owed the unpaid fees pursuant to the 2020
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Services Agreement and that any payment Tiber Creek might recover from Ellume Ltd. in
the Australian voluntary administration could reduce the balance owed but would not
preclude the claims against Ellume USA.
Second, Tiber Creek sued Ellume USA, Ellume Ltd., Parsons, and “John Doe”
defendants in March 2023 (Ellume II). That complaint alleged the defendants procured the
Deed of Variation by fraud in order to transfer Ellume USA’s debt to Ellume Ltd., which
they knew was approaching insolvency. Tiber Creek requested a declaration that the Deed
of Variation was void and sought compensatory and punitive damages against Parsons.
The parties agreed to consolidate the two actions under Federal Rule of Civil
Procedure 42(a)(2). The defendants in both cases moved to dismiss on various grounds,
including forum non conveniens, arguing that the suits should be litigated in Australia. The
district court scheduled a combined hearing on the dismissal motions.
At the hearing, the parties agreed that Australia was an adequate and available forum
and disagreed only about whether it was more convenient than the Eastern District of
Virginia. The defendants argued that the cases belonged in Australia because, among other
reasons, most documents and all witnesses except Clerici were in Australia, including
material nonparty witnesses such as individuals who negotiated, drafted, and signed the
Deed of Variation and 2022 Services Agreement, former Ellume Ltd. officers, and the
administrators of the voluntary administration. The defendants observed that Tiber Creek
had submitted claims and was recognized as a creditor of Ellume Ltd. in the voluntary
administration, which suggested that Australia was not inconvenient for Tiber Creek and
that the DOCA barred Tiber Creek from initiating other actions to enforce its debt. The
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defendants further noted that, throughout the parties’ relationship, Tiber Creek had entered
agreements consenting to jurisdiction in Australia, including the 2014 NDA (which the
defendants claimed was incorporated into the 2020 Services Agreement), the Deed of
Variation, and the 2022 Services Agreement. Lastly, the defendants argued that the 2020
Services Agreement—which formed the basis of Ellume I—bound Ellume Ltd., not Ellume
USA, and was terminated by the 2022 Services Agreement in any event. In the defendants’
view, Ellume USA was not a proper defendant because the 2020 Services Agreement
“never mentioned Ellume USA” but “was directed to [Parsons in] Australia,” and any
doubt on that score “should be litigated in Australia.” J.A. 751.
Tiber Creek, for its part, urged the court to consider each case separately because
“the arguments in favor of forum non conveniens” made “more sense when we’re talking
about a case involving two Australian defendants” as in Ellume II, “than when we’re
talking about a case that involves two American entities,” as in Ellume I. J.A. 755. Tiber
Creek emphasized that a plaintiff’s decision to file suit in its home forum is entitled to great
weight and that, in Ellume I, “we have a Virginia entity suing in Virginia, a company that
has its headquarters an hour from here.” J.A. 756. Defending its decision to sue Ellume
USA and not Ellume Ltd. in Ellume I, Tiber Creek acknowledged that no contract
referenced Ellume USA but argued parol evidence would demonstrate that the 2020
Services Agreement bound Ellume USA to pay the consulting fees. Tiber Creek further
noted that Ellume Ltd.’s own administrators had initially rejected its proof of debt on the
ground that Ellume USA was the indebted party. In response to questioning from the court,
Tiber Creek represented that, if this were a Chapter 11 bankruptcy in the United States, an
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automatic stay would hinder its suits against Ellume USA and Ellume Ltd. because the
disputed contract question and claims of fraud would be channeled to the bankruptcy court
in the first instance. But Tiber Creek protested that the district court could not recognize
the Australian bankruptcy because the defendants had not pursued the mechanisms of
Chapter 15 of the Bankruptcy Code for cross-border insolvencies. Further, Tiber Creek
argued that the DOCA did not protect Ellume USA from parallel proceedings to collect the
debt, since it was not the company in voluntary administration. Finally, as to witnesses
and documents, Tiber Creek contended that the defendants could defend Ellume I with
witnesses they controlled and that, although “the arguments are a little bit different on
Ellume [II],” there had been no “true showing” that the defendants “wouldn’t be able to
marshal the evidence they need to defend the case if they had to do it here.” J.A. 759.
The district court granted the motions to dismiss both cases without prejudice on
forum non conveniens grounds. Ruling from the bench, the court explained:
There really is no dispute, as the parties have conceded in their papers and this morning, that Australia is both available and adequate. So this really comes down to whether or not the defendants have demonstrated that it is more convenient to be in Australia, considering the public and the private interests of all of the parties, and I have considered these cases separately and appreciate that there are burdens, no matter what the Court decides; but, fundamentally, this is an Australian matter for Australia to decide, and it’s clear that Tiber Creek anticipated that it might have to resolve matters in Australia, not only because of the forum-selection clauses and the [o]ther documents that are not dispositive, but are certainly a relevant consideration, but to the actual participation of Tiber Creek in the bankruptcy proceeding in Australia. And while I appreciate that Ellume USA is a corporation here, its head is, in fact, in Australia, and they’re more than capable and have consented to resolving the matter in Australia, and I don’t find that separating those out and having the litigation remain here in part and in Australia in part would be appropriate.
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There’s no doubt that the majority of witnesses are in Australia, that the documents are in Australia, that the ability of the defendants to be able to obtain pretrial witnesses and documents would be severely curtailed, even using the Hague Convention. The public factors also favor having this matter resolved in Australia. As we discussed, had this matter been a bankruptcy proceeding that began here, there’s no doubt that the matter would have been stayed and efforts would have had to have been made to find exceptions to allow the litigation to go forward outside of the bankruptcy context. So with regard to all three factors -- availability, adequacy, convenience, considering the public and private factors considering each defendant separately -- I find that the motion should be granted and the case dismissed without prejudice, and the plaintiffs, of course, are well within their rights to continue the litigation in the bankruptcy court or to seek additional remedies through the courts in Australia.
J.A. 773–774.
On June 13, 2023, two weeks after the district court’s ruling, the sale between
Ellume Ltd. and Hough Consolidated fell through. The DOCA automatically terminated,
and Ellume Ltd. entered liquidation proceedings in which Tiber Creek would receive
nothing. Citing these “materially changed circumstances,” Tiber Creek moved to amend
the district court’s judgment under Federal Rule of Civil Procedure 59(e) or 60(b). J.A.
777–778.
The district court denied Tiber Creek’s motion. As the court explained, “newly
discovered evidence” can justify relief under Rules 59(e) and 60(b), but that evidence must
have existed at the time of the court’s ruling; post-ruling developments are not a basis for
reconsideration. Tiber Creek Partners, LLC v. Ellume USA LLC, Nos. 1:23-cv-0148, 1:23-
cv-0292, 2023 WL 5987385, at *2 (E.D. Va. Aug. 1, 2023). And this development did not
make the court’s earlier ruling a “manifest injustice.” Id. at *3. “[A]s with all bankruptcy-
like proceedings,” the court reasoned, “the termination of the voluntary administration
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proceeding without payment to Tiber Creek was always a potential outcome.” Id. Tiber
Creek timely appealed.
II.
A.
We review a forum non conveniens dismissal for an abuse of discretion, mindful
that “the district court’s ‘decision deserves substantial deference.’” Jiali Tang v. Synutra
Int’l, Inc., 656 F.3d 242, 248 (4th Cir. 2011) (quoting Piper Aircraft Co. v. Reyno, 454 U.S.
235, 257 (1981)). While Tiber Creek’s arguments have some force, ultimately it has not
shown that the district court abused its discretion.
A forum non conveniens dismissal must be based on a determination that a specific
alternative forum is available, adequate, and “more convenient in light of the relevant
public and private interests involved.” Id. As previously noted, Tiber Creek does not
contest that Australian courts are an available and adequate forum for these suits. It
disputes only whether Australia is more convenient. Convenience considerations
pertaining to the private interests of the litigants 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; 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.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
Public interest factors include “the 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
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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 241 n.6 (quoting Gulf Oil, 330 U.S. at
509).
On appeal, Tiber Creek primarily contends that the district court failed to
acknowledge the deference due its choice of forum. A plaintiff’s chosen forum is
presumptively convenient, and when a plaintiff sues in its home forum, that selection is
entitled to “greater deference.” Id. at 255. According to Tiber Creek, the record lacks
“affirmative evidence that the district court did in fact consider this heightened standard
when it conducted its analysis.” DiFederico v. Marriott Int’l, Inc., 714 F.3d 796, 803 (4th
Cir. 2013). We disagree. The district court expressly recognized that Tiber Creek’s
“choice of the forum” deserved “great weight” in the convenience analysis. J.A. 758. And
contrary to Tiber Creek’s argument, the district court did not defer to the defendants’
preferred forum merely by acknowledging their argument that Ellume USA had consented
to jurisdiction in Australia.
At root, Tiber Creek insists the district court did not give enough weight to its choice
of its home forum and the local nature of Ellume I. Consistent with its approach in the
district court, on appeal Tiber Creek focuses almost exclusively on Ellume I. To be sure,
that action involves significant domestic interests. Tiber Creek alleged that a Virginia-
based consulting firm helped secure around $260 million in funding from the United States
government for a company doing business in the United States. Considered anew, we
might give those interests more weight in the analysis. But the district court was
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appropriately concerned about bifurcating Ellume I and Ellume II between two forums and
creating parallel litigation about the same claims and defenses in two different countries. 1
See J.A. 773 (“I don’t find that separating those [cases] out and having the litigation remain
here in part and in Australia in part would be appropriate.”). Ellume II involves Australian
defendants, documents, witnesses, and events, including allegedly wrongful conduct
occurring in Australia. And both cases necessarily implicated the ongoing voluntary
administration in Australia, where defendant Ellume Ltd. was in reorganization
proceedings and plaintiff Tiber Creek was a creditor pursuing the very same debt at issue
in these cases. In that sense, even if Ellume I and Ellume II remained in the Eastern District
of Virginia, the parties’ dispute would nevertheless be bifurcated between that forum and
the Australian court. The district court’s assessment on that score was not an abuse of
discretion. 2
1 Tiber Creek cites Hall v. Hall, 138 S. Ct. 1118 (2018), for the position that Ellume I and Ellume II “retain[ed] their distinct identities despite consolidation.” Opening Br. 22. That’s true, as far as it goes. In Hall, the Supreme Court held that an action consolidated under Rule 42(a)(2) “retains its independent character at least to the extent it is appealable when finally resolved, regardless of any ongoing proceedings in the other cases.” 138 S. Ct. at 1125 (emphasis added). However, the Court clarified that “[n]one” of its opinion “mean[t] that district courts may not consolidate cases for ‘all purposes’ in appropriate circumstances,” explaining that “[d]istrict courts enjoy substantial discretion in deciding whether and to what extent to consolidate cases.” Id. at 1131. Nothing in Hall undercuts the district court’s authority to consider the relationship between these cases in its forum non conveniens analysis. 2 For similar reasons, we are not persuaded by the dissent’s perception that the district court considered only whether “Australia was better” and not whether “Virginia was unacceptable.” Infra, at 22. As explained, the district court found that the witnesses and documents were in Australia, that litigating in Virginia would curtail discovery, and that allowing litigation about this debt to proceed in Virginia while the voluntary
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Turning to Tiber Creek’s other objections, we similarly find no reversible error. The
district court determined it was “clear that Tiber Creek anticipated that it might have to
resolve matters in Australia,” in part because of “the forum-selection clauses and the
[o]ther documents that are not dispositive, but are certainly a relevant consideration.” J.A.
773. While Tiber Creek does not dispute that it anticipated having to litigate these matters
with Ellume Ltd. in Australia, it disagrees that the forum selection clauses were relevant.
According to Tiber Creek, the only relevant contract was the 2020 Services Agreement,
which formed the basis for its breach of contract claim. That contract contains no forum
selection clause and, in Tiber Creek’s view, does not incorporate the 2014 NDA with its
forum selection clause. But, of course, Ellume II concerns the Deed of Variation, which
contains a clause in which Tiber Creek consents to the jurisdiction of Australian courts, as
does the 2022 Services Agreement. The district court did not suggest that any of these
documents required this matter to be litigated in Australia. And Tiber Creek identifies no
error in the court considering these documents for the limited purpose of assessing whether
Tiber Creek anticipated it would have to litigate these issues with Ellume Ltd. in Australian
courts.
Tiber Creek next claims the district court erred in evaluating the availability of
witnesses. The district court explained that “the majority of witnesses are in Australia,”
“the documents are in Australia,” and the defendants’ ability “to obtain pretrial witnesses
administration continued in Australia would be untenable. And because the district court correctly acknowledged the deference due Tiber Creek’s choice of its home forum, we are not convinced that its use of the “more convenient” phrasing from our caselaw introduced a legal error. See infra, at 21. 13 USCA4 Appeal: 23-1882 Doc: 35 Filed: 07/16/2025 Pg: 14 of 23
and documents” in discovery would be frustrated if litigation proceeded in Virginia. J.A.
773–774. Tiber Creek faults the district court for not determining whether any witnesses
in Australia would be unwilling to participate in discovery or trial; it claims that “an
unavailable witness must also be an unwilling witness to be relevant to the forum non
conveniens analysis.” Opening Br. 37. That is incorrect. The “availability of compulsory
process for attendance of unwilling [witnesses] and the cost of obtaining attendance of
willing[] witnesses” are both “[i]mportant considerations” for the private interest analysis.
Gulf Oil, 330 U.S. at 508 (emphasis added). The defendants identified at least seven
specific, non-party witnesses located in Australia. The district court was entitled to
consider their location in its analysis without first finding them unwilling to participate.
Lastly, Tiber Creek protests the district court even considering the voluntary
administration proceeding in Australia. Tiber Creek claims that the Australian proceedings
must be recognized by a United States bankruptcy court pursuant to Chapter 15 of the
Bankruptcy Code before the district court can afford them any weight in the forum non
conveniens analysis. Nothing before us supports that argument. Chapter 15 aims “to
provide effective mechanisms for dealing with cases of cross-border insolvency.” 11
U.S.C. § 1501(a). Under its provisions, a “foreign representative” appointed to “administer
the reorganization or the liquidation” of a debtor in a foreign proceeding or “to act as a
representative of such foreign proceeding,” id. § 101(24), can petition for formal
recognition of that proceeding in a United States court, id. §§ 1501(b), 1515(a). Upon
recognition, a foreign representative may seek to stay parallel actions or other relief
necessary to assist the foreign proceeding. See id. § 1521. The statute does not apply here,
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where the defendants are not foreign representatives and do not seek relief available under
Chapter 15. See Trikona Advisers Ltd. v. Chugh, 846 F.3d 22, 31 (2d Cir. 2017). Tiber
Creek cites no authority that would require formal recognition of foreign proceedings
before a court can consider them as a relevant factor in the forum non conveniens analysis.
Tiber Creek calls the voluntary administration “totally irrelevant to Ellume I,” in
which Ellume USA was the sole defendant. Opening Br. 38. It reiterates that Ellume USA
was not in voluntary administration and the DOCA did not prohibit suits against Ellume
USA. By focusing exclusively on its breach of contract claim against Ellume USA, Tiber
Creek asks us to ignore its efforts in Ellume II to fend off Ellume USA’s defenses related
to the Deed of Variation and 2022 Services Agreement with Ellume Ltd., which necessarily
draw in the Australian proceedings, documents, and witnesses. One could balance these
considerations differently than the district court did. But “[a]t its immovable core, the
abuse of discretion standard requires a reviewing court to show enough deference to a
primary decision-maker’s judgment that the court does not reverse merely because it would
have come to a different result in the first instance.” Evans v. Eaton Corp. Long Term
Disability Plan, 514 F.3d 315, 322 (4th Cir. 2008). We are satisfied that the district court
applied the correct legal framework, considered the relevant factors, and reached a
permissible conclusion. Accordingly, we find no abuse of discretion.
B.
Tiber Creek also appeals the district court’s denial of its motion to amend the
judgment. We review the district court’s denial of post-judgment relief under Rules 59(e)
and 60(b) for an abuse of discretion. See Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir.
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2011); Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir. 2010). In general,
“reconsideration of a judgment after its entry is an extraordinary remedy which should be
used sparingly.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)
(internal quotation marks omitted).
The district court declined to reconsider the dismissal under Rules 59(e) and 60(b)
based on Tiber Creek’s “newly discovered evidence,” namely, proof that Ellume Ltd.
entered liquidation several weeks after the judgment. As the court explained, “‘under both
rules,’” the newly discovered evidence “‘must have been in existence at the time’” of the
court’s ruling. Tiber Creek, 2023 WL 5987385, at *2 (quoting 11 Wright & Miller, Fed.
Prac. & Proc. Civ. § 2859 (3d ed.)). On appeal, Tiber Creek asserts that “pre-ruling
evidence” “portended the subsequent collapse of the deal” between Ellume Ltd. and Hough
Consolidated. Opening Br. 43–44. That argument does not undermine the district court’s
sound reasoning in denying reconsideration based on a post-judgment event. And as the
district court observed, “the termination of the voluntary administration without payment
to Tiber Creek was always a potential outcome.” Tiber Creek, 2023 WL 5987385, at *3.
III.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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RICHARDSON, Circuit Judge, dissenting:
By saying so little, the majority provides little to disagree with. In fact, apart from
the disposition, I agree with almost everything the majority says about the district court’s
forum non conveniens analysis. I agree that the district court nominally acknowledged the
deference given to Tiber Creek’s choice of home forum. See ante at 11. I agree that the
district court was entitled to consider the interplay between Ellume I and Ellume II, which
were consolidated. See ante at 11–12. I agree that it could consider the permissive forum-
selection clauses signed by Tiber too. See ante at 12–13. Same with the cost of bringing
in willing witnesses. See ante at 13–14 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
508 (1947)). And with the Australian bankruptcy. See ante at 14.
My disagreement is instead with what the majority doesn’t say. At no point does
the majority explain why, after taking all these considerations into account, the district
court was permitted to weigh them as it did and take the exceedingly rare step of dismissing
a lawsuit filed by a citizen plaintiff in its home forum. While “[t]he forum non
conveniens determination is committed to the sound discretion of the trial court,” the
district court’s decision “deserves substantial deference” only when, among other things,
“its balancing of [the public and private interest] factors is reasonable.” Piper Aircraft Co.
v. Reyno, 454 U.S. 235, 257 (1981). I do not believe the district court’s analysis was
reasonable here.
Before taking a walk among the legal trees where visibility can be obscured by a
canopy of jargon, pause to look at the forest. What do we have? We have an American
company, Tiber Creek, run by an American citizen, John Clerici, performing consulting
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work in America to help secure a grant of American taxpayer dollars from the American
government. After an alleged contract breach, that American company, based exclusively
in the state of Virginia, sued in the forum it was geographically closest to: the United
States District Court for the Eastern District of Virginia. Yet the district court thought that
“fundamentally, this is an Australian matter for Australia to decide.” J.A. 773. Such a
result defies common sense.
It also defies the law. On appeal, we assess whether the district court’s forum non
conveniens analysis was reasonable by looking for “affirmative evidence” that the district
court understood the appropriate legal framework and “analyze[d] the case accordingly.”
DiFederico v. Marriott Int’l, Inc., 714 F.3d 796, 803 (2013). Far from evincing an
understanding of the correct legal framework, the affirmative evidence in the record
suggests that the district court made two related errors in its analysis. First, it failed to
afford Tiber Creek the heightened deference owed to a plaintiff suing in its home forum.
Second, it mistakenly focused on how convenient it would be to litigate in Australia, as
opposed to how inconvenient it would be to litigate in Virginia. Together, these amounted
to an abuse of the district court’s discretion.
Dismissal for forum non conveniens is supposed to be “rare.” Gilbert, 330 U.S. at
509. And the Supreme Court has told us more than once that it should be particularly rare
when the plaintiff has chosen to sue in his “home forum.” 1 Piper Aircraft, 454 U.S. at
1 When a suit is between an American plaintiff and a foreign defendant, the home forum “refers to any federal district in the United States.” DiFederico, 714 F.3d at 803 n.4. When a suit is between two Americans, the home forum refers to the federal districts
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255–56. When a defendant complains of inconvenience in such circumstances, the court
should not “deprive[]” the plaintiff “of the presumed advantages of his home jurisdiction”
unless there is a “clear showing” in the record that the forum would cause “such
oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's
convenience.” Koster, 330 U.S. at 524. This seldom occurs: “In any balancing of
conveniences, a real showing of convenience by a plaintiff who has sued in his home forum
will normally outweigh the inconvenience the defendant may have shown.” Id. While “[a]
citizen’s forum choice should not be given dispositive weight,” Piper Aircraft, 454 U.S. at
255 n.23, the choice of home forum “should rarely be disturbed.” Gilbert, 330 U.S. at 508;
accord SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097,
1101 (11th Cir. 2004) (stating that a court should only dismiss a citizen plaintiff’s suit in
“unusually extreme circumstances” where “material injustice is manifest” (quotation
omitted)); Guidi v. Inter-Continental Hotels Corp., 224 F.3d 142, 147 (2d Cir. 2000)
(requiring the defendant to show that circumstances “weigh[] heavily on the side of
dismissal”).
In other words, when conducting the forum non conveniens analysis for a citizen
plaintiff, the district court “must apply . . . increased deference” and place a heavy thumb
on the scale in favor of keeping the case where it is. DiFederico, 714 F.3d at 803. But the
district court placed no thumb on the scale for Tiber Creek. While the district court
mentioned the “great weight” given Tiber Creek’s choice of forum once, in passing, at the
in the state in which the plaintiff resides. See Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 520–21, 524 (1947). 19 USCA4 Appeal: 23-1882 Doc: 35 Filed: 07/16/2025 Pg: 20 of 23
very beginning of the hearing, J.A. 758, no deference appears in the contents of its analysis.
Instead, the district court appears to have treated Tiber Creek and Ellume as equals,
spending as much time discussing Ellume’s convenience as Tiber Creek’s. See ante at 8
(quoting the district court).
To be sure, the district court also briefly mentions that litigating in Australia poses
fewer evidentiary issues and respects the ongoing bankruptcy proceeding in Australia. See
ante at 9 (quoting the district court). But this cursory mention of these other considerations
does not justify dismissal. The heightened deference afforded to citizen plaintiffs means
that Tiber Creek only needed to make “a real showing of convenience” in order to
“outweigh the inconvenience” that Ellume may have shown. Koster, 330 U.S. at 524. And
it should not have been hard for Tiber Creek to make that showing. “When the home forum
has been chosen, it is reasonable to assume that this choice is convenient.” Piper Aircraft,
454 U.S. at 255–56. After all, “there is inherent convenience to bringing this case in [Tiber
Creek’s] legal backyard.” DiFederico, 714 F.3d at 807. Yet the district court made no
effort to explain how Tiber Creek failed to meet this standard.
This brings us to the second error in the district court’s analysis. The district court
perhaps didn’t explain how litigating in Virginia was inconvenient because the district
court’s analysis was focused on the wrong forum entirely. The district court was supposed
to require Ellume to show that the “oppressiveness and vexation” from litigating in Virginia
would be “out of all proportion” to Tiber Creek’s convenience. Koster, 330 U.S. at 524.
In other words, the district court’s “balancing of conveniences” should have been between
Tiber Creek’s convenience in Virginia and Ellume’s inconvenience in Virginia. Id. Yet
20 USCA4 Appeal: 23-1882 Doc: 35 Filed: 07/16/2025 Pg: 21 of 23
the district court framed the inquiry as whether “it is more convenient to be in Australia.”
J.A. 773. This was the wrong inquiry—and the majority repeats the district court’s
mistake. See ante at 10.
The Supreme Court has never suggested that a suit that would be convenient to
litigate in the plaintiff’s chosen forum could be dismissed simply because an alternative
forum would be more convenient. Instead, the Supreme Court has consistently emphasized
that dismissal for forum non conveniens should only occur when “trial in the chosen forum
would be unnecessarily burdensome.” Piper Aircraft, 454 U.S. at 255 n.23; see also id. at
259 (permitting dismissal when “trial in the plaintiff's chosen forum would be
burdensome”); id. at 249 (“where trial in the plaintiff's chosen forum imposes a heavy
burden”); Koster, 330 U.S. at 531–32 (“when a defendant shows much harassment”);
Gilbert, 330 U.S. at 508 (“the plaintiff may not, by choice of an inconvenient forum, ‘vex,’
‘harass,’ or ‘oppress’ the defendant”). It’s true that in Jiali Tang v. Synutra Int’l, Inc., 656
F.3d 242 (4th Cir. 2011), we summarized the forum non conveniens inquiry as requiring a
district court to “determine whether the alternative forum is: 1) available; 2) adequate; and
3) more convenient in light of the public and private interests involved.” Id. at 248 (citing
Piper Aircraft, 454 U.S. at 241). But to the extent Jiali Tang and the cases that cite it 2
suggest that forum non conveniens dismissal is appropriate even when the plaintiff’s
2 A handful of cases parrot Jiali Tang’s language, though it appears that none apply the erroneous standard. See, e.g., DiFederico, 714 F.3d at 800, 801, 808 (repeating the erroneous “more convenient” standard from Jiali Tang but then correctly applying Supreme Court precedent); AdvanFort Co. v. Zamil Offshore Servs. Co., 134 F.4th 760, 768, 772–74 (4th Cir. 2025) (same). 21 USCA4 Appeal: 23-1882 Doc: 35 Filed: 07/16/2025 Pg: 22 of 23
chosen forum is convenient, their reasoning is “inconsistent with Supreme Court authority”
and “we are not bound to follow them.” Rose v. PSA Airlines, Inc., 80 F.4th 488, 504
(2023) (quotation omitted).
To put a fine point on it: The forum non conveniens question is not whether another
venue is more convenient than the one the plaintiff has chosen, but whether the plaintiff’s
chosen venue is untenably inconvenient. See Koster, 330 U.S. at 524. Outside of such a
situation, “plaintiffs are ordinarily allowed to select whatever forum they consider most
advantageous” and have what the Supreme Court has termed “plaintiff’s venue privilege.”
See Atlantic Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 63
(2013) (quotation omitted). So even if Australia was more convenient for both parties,
Tiber Creek’s suit could proceed in Virginia in many circumstances. To have the suit
dismissed, Ellume needed to show not that Australia was better, but that Virginia was
unacceptable.
Ellume made no such showing, nor did the district court recognize that it needed to.
In its discussion with counsel, the district court repeatedly focused on how it would “be
more convenient for everyone to have this matter decided in Australia.” J.A. 762. When
explaining its ultimate decision, the district court incorrectly described the question before
it as “whether or not the defendants have demonstrated that it is more convenient to be in
Australia.” J.A. 773. And under that erroneous standard, the district court highlighted,
among other facts, that Ellume USA’s head is “in Australia,” and how Tiber Creek
“anticipated that it might have to resolve matters in Australia”—two considerations that
22 USCA4 Appeal: 23-1882 Doc: 35 Filed: 07/16/2025 Pg: 23 of 23
say nothing at all about the inconvenience of litigating in Virginia. 3 J.A. 773. To the extent
the district court dismissed the case by considering applying the wrong legal standard and
by considering immaterial facts, it abused its discretion.
Whether by looking at the trees or by looking at the forest, neither law nor common
sense supports the district court’s decision to send the parties’ dispute to Australia. With
little explanation, the majority doubles down on the district court’s error. Because,
fundamentally, this is an American matter for America to decide, I respectfully dissent.
3 The fact Tiber Creek anticipated litigation abroad would be relevant if it were “doing extensive foreign business,” in which case we would “partially discount[]” the deference afforded to its choice of home forum. See DiFederico, 714 F.3d at 807 (quotation omitted). But there is no suggestion here that Tiber Creek’s limited contractual arrangements with Ellume, all of which involve exclusively domestic performance, amount to “extensive foreign business.” 23