The essential question presented is what is the proper standard for determining a motion to dismiss an admiralty action on the ground of forum non conveniens when the action has been brought by an American resident libelant in a United States district court and when there is an alternative forum abroad. For the reasons below, we hold that the proper standard is that set forth by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and recently adhered to by our Court in Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880 (2 Cir. 1978). The district court properly applied that standard in the instant case.
In other cases, dismissals have been affirmed despite the failure to provide detailed affidavits. See Farmanfarmaian v. Gulf Oil Corp., 437 F. Supp. 910, 924 (SDNY 1977), aff'd., 588 F.2d 880 (CA2 1978). And in a decision handed down two weeks after the decision in this case, another Third Circuit panel affirmed a dismissal without mentioning such a requirement.
The District Court's Decision In a thorough opinion, reported at 500 F.Supp. 787, the district court reviewed the pertinent principles set forth in the leading forum non conveniens cases, including Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ("Gilbert"); Alcoa Steamship Company v. M/V Nordic Regent, 654 F.2d 147 (2d Cir.) (en banc), cert. denied, ___ U.S. ___, 101 S.Ct. 248, 66 L.Ed.2d 116 (1980) ("Alcoa"); Schertenleib v. Traum, 589 F.2d 1156 (2d Cir. 1978) ("Schertenleib"); and Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880 (2d Cir. 1978) ("Farmanfarmaian"). As set forth in greater detail below, the court evaluated the prospects of the parties for a fair adjudication of the claims in the alternative forums, as well as such "public interest" factors as the remoteness of the forum from the center of the controversy, and the ease or difficulty of judicial enforcement of an eventual judgment, and concluded that New York is not, and Brazil is, an appropriate forum for this action.
Indeed, in the related context of the adequacy of the foreign forum (discussed further in Point IV below), the Second Circuit has held that "[o]nce defendants consent to suit in" the foreign forum, "there [is] no reason to determine whether defendants were initially subject to the compulsory jurisdiction of [the foreign forum]." Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880, 882 (2d Cir. 1978) (citing Schertenleib v. Traum, 589 F.2d at 1163) ("Plaintiff argues that this practice is unfair to him in that he first brought suit in allegedly the only place he could, and now, after he tries to sue defendant in Geneva, he may end up back here again, all at his inconvenience and expense. The answer to this is that a district court should not dismiss unless it justifiably believes that the alternative forum will take jurisdiction, if the defendant consents.
The treaty stops well short of granting the nationals of both countries "access to each country's courts on terms no less favorable than those applicable to nationals of the court's country." See Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880, 882 (2d Cir. 1978). As we have noted before, "[h]istory and practice . . . teach that a principle of equal access must be explicitly adopted."
We have ruled, however, that when a treaty with a foreign nation accords its nationals access to our courts equivalent to that provided American citizens, identical forum non conveniens standards must be applied to such nationals by American courts. See Irish Nat'l Ins. Co. v. Aer Lingus Teoranta, 739 F.2d 90, 91-92 (2d Cir. 1984); Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 152-53 (2d Cir.) (in banc), cert. denied, 449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116 (1980); Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880, 882 (2d Cir. 1978). Because such a treaty exists between the United States and Venezuela, see Treaty of Peace, Friendship, Navigation and Commerce, Jan. 20, 1836, U.S.-Venez., art. 13, 8 Stat. 466, 472, no discount may be imposed upon the plaintiff's initial choice of a New York forum in this case solely because Proyecfin is a foreign corporation.
However, while not all of us might have decided this issue as did the court below, we recognize that a district judge has "wide discretion" in determining the issue of forum non conveniens. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947); Alcoa Steamship Co. v. M/V Nordic Regent, 636 F.2d 860 at 871 (2d Cir. 1980) (in banc); Farmanfarmaian v. Gulf Oil Corp. 588 F.2d 880, 882 (2d Cir. 1978). Even on the assumption that the district court had jurisdiction over all eighteen defendants, we believe that the district court's dismissal of this action on the ground of forum non conveniens was not a clear abuse of discretion.
American citizenship of the plaintiff does not increase the defendant's burden, just as foreign citizenship may not lessen it.Farmanfarmaian v. Gulf Oil Corp., 437 F. Supp. 910, 927 (S.D.N.Y. 1977), aff'd on other grounds, 588 F.2d 880 (2d Cir. 1978).See Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880, 882 (2d Cir. 1978).
I Moore's Federal Practice, P 0.145(5), pp. 1619-20. In one recent second circuit case, Farmanfarmaian v. Gulf Oil Corp., 437 F.Supp. 910 (S.D.N.Y.1977), aff'd, 588 F.2d 880 (2d Cir. 1978), for example, a judge's exercise of discretion in dismissing a case with a fact pattern similar to the one now before us was approved: Since these agreements were reached in Iran, between Iranian parties and concerning the shares of an Iranian manufacturer ... it is clear that evidence of the breach itself ... must come primarily from Iran, and the major witnesses whose testimony may be needed concerning this breach will also most likely come from there.
Preliminarily it must be noted that, under present Second Circuit authority, the American citizenship of a plaintiff has no particular effect in balancing the forum non conveniens factors. In Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880 (2d Cir. 1978), the Iranian plaintiff had the advantage of a treaty in the United States and Iran which granted him access to American courts "on terms no less favorable than those applicable to nationals of the court's country." Thus, as the Alcoa en banc court observed of Farmanfarmaian: