Wien Air Alaska Inc v. Brandt

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 7, 2001
• Docket: 01-10450
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-10450 Summary Calendar

Wien Air Alaska, Inc.,

Plaintiff-Appellant,

VERSUS

Gerald I. Brandt,

Defendant-Appellee.

Appeal from the United States District Court For the Northern District of Texas (4:95-CV-591-Y) September 5, 2001 Before DeMOSS, PARKER, and DENNIS, Circuit Judges

PER CURIAM:*

Wien Air Alaska, Inc. (“Wien”) has appealed the district

court’s dismissal of this case on grounds of forum non conveniens.

We affirm the district court’s ruling.

Wien sued Gerald Brandt in a Texas state court alleging that

Brandt defrauded the company in an overseas business venture. Wien

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 is a Texas corporation engaged in the business of leasing

commercial aircraft on an international basis. Brandt is an

attorney, and a citizen and resident of the Federal Republic of

Germany (“Germany”). After removing this case to the Northern

District of Texas, Brandt filed a motion to dismiss the case on

forum non conveniens grounds. The district court granted Brandt’s

motion and this appeal followed.

We review a district court’s dismissal on forum non conveniens

grounds for “clear abuse of discretion.” Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 257 (1981); see also Alpine View Co. v. Atlas

Copco AB, 205 F.3d 208, 221 (5th Cir. 2000); Dickson Marine, Inc.

v. Panalpina, Inc., 179 F.3d 331, 341 (5th Cir. 1999) (both citing

Piper Aircraft). “[G]enerally, a district court abuses its

discretion when it grants a motion to dismiss without oral or

written reasons or if it fails to address and balance the relevant

principles and factors.” Dickson Marine, 179 F.3d at 341. We

therefore only reverse the lower court’s decision if it made

unreasonable or unsupported conclusions when applying the forum non

conveniens factors discussed in Gulf Oil Corp. v. Gilbert, 330 U.S.

501, 508-09 (1947). See Alpine View, 205 F.3d at 221.

District courts apply a three step inquiry in determining

whether to dismiss a case on forum non conveniens grounds. First,

the court determines whether an available and adequate forum exists

where “the entire case and all of the parties come within the

2 jurisdiction of that forum.” Dickson Marine, 179 F.3d at 342.

Second, if an adequate alternative forum exists, the court balances

several “private interest” factors to determine if dismissal is

warranted. See id. If the private interest factors weigh in favor

of dismissal, the court need not make further inquiry. Baris v.

Sulpicio Lines, Inc., 932 F.2d 1540, 1549 (5th Cir. 1991), cert.

denied, 502 U.S. 963 (1991). Finally, if the private interest

factors remain closely balanced, the district court may dismiss the

action based on “public interest” factors that favor the

alternative forum. See In re Air Crash Disaster Near New Orleans,

La., 821 F.2d 1147, 1165 (5th Cir. 1987).

The district court found that Germany was an adequate and

available alternative forum. The only evidence in this case

regarding the adequacy of the German legal system suggests that it

is sophisticated and that it recognizes the relevant causes of

action in this case. The fact that the filing fee in German courts

is one percent of the total recovery sought does not make German

courts inadequate alternative forums. See, e.g., Mercier v.

Sheraton Int’l, Inc., 981 F.2d 1345, 1353 (1st Cir. 1992) (holding

that a fifteen percent cost bond did not make Turkish courts

unavailable); Nai-Chao v. Boeing Co., 555 F. Supp. 9, 16 (N.D. Cal.

1982), aff’d, 708 F.2d 1406 (9th Cir.), cert. denied, 464 U.S. 1017

(1983) (holding that a one percent filing fee was not relevant to

the adequacy of the foreign forum).

3 The district court also found that the private interest

factors in this case weighed in favor of Germany. The Supreme

Court has held that the following private interest factors are

relevant to the forum non conveniens inquiry: (1) the relative ease

of access to evidence; (2) the availability of compulsory process

of likely witnesses; (3) practical considerations such as the cost

and speed of trial; and (4) the enforcibility of judgment if one is

obtained. See Gilbert, 330 U.S. at 508-09.

In weighing the private interest factors in this case, the

court considered the following facts. First, the court noted that

although Wien is incorporated in Texas, it is an international

corporation that maintained offices in Germany at the time that its

causes of action accrued. Brandt, on the other hand, is an

individual residing in Germany, who made only one trip to Texas

upon Wien’s insistence. Second, the district court found that the

majority of the key witnesses in this case live in or around

Germany. This finding was based in part on the fact that the

transaction at issue involved the sale of commercial aircraft in

Germany and the possible expansion of Wien’s business in Eastern

Europe. Third, the court noted that the contracts at issue in this

case are written in German, and that German law will probably

govern this case. Fourth, Brandt showed that he owned no assets in

the United States, so that enforcing a judgment in this case would

ultimately require Wien to file suit in Germany. Finally, the

court noted that as a practical matter, Germany has an interest in

4 policing the activities of its attorneys, particularly when they

are engaged in activities centered in Germany.

We conclude that the district court did not abuse its

discretion in finding (1) that German courts provide an adequate

alternative forum and (2) in balancing the private interests in

favor of Germany. We therefore AFFIRM the district court’s

dismissal of Wien’s action on forum non conveniens grounds.