Opinion
3:22-cv-1663-AR
12-11-2023
TRULY SOCIAL GAMES, LLC, an Oregon limited liability company, Plaintiff, v. LEAF MOBILE, INC., a British Columbia corporation, now doing business as EAST SIDE GAMES GROUP, INC., Defendant.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD UNITED STATES MAGISTRATE JUDGE
Plaintiff Truly Social Games, LLC (TSG), an Oregon company, brings contract-related claims against defendant Leaf Mobile, Inc., a British Columbia corporation. (Am. Compl., ECF No. 6.) Leaf moves to dismiss the action, arguing that this court lacks specific personal jurisdiction over it because TSG's claims do not arise out of conduct by Leaf in Oregon and because Leaf has not availed itself of the privilege of doing business in Oregon. (Def.'s Mot. at 10-13, ECF No. 8.) TSG replies that there is specific personal jurisdiction over Leaf based on the contract between the parties, which contemplates performance in Oregon and creates continuing obligations between Leaf and TSG. (Pl.'s Resp. at 12-14, ECF No. 18.)
The parties agree that this court lacks general personal jurisdiction over Leaf. (Def.'s Mot. at 7; Pl.'s Resp. at 3 n.1.)
Alternatively, Leaf asserts forum non conveniens as a basis to dismiss the action. In Leaf's view, British Columbia, Canada is a far more convenient forum because Leaf's headquarters, documents, and employees are located there; any judgment against Leaf would have to be brought there to be enforced; and litigating here would require this court to apply British Columbian and Canadian law. (Def.'s Mot. at 17-19.) TSG responds that Leaf's inconvenience in traveling to Oregon is no greater than the inconvenience that TSG would face litigating in British Columbia. TSG further asserts that any judgment from this court is enforceable in British Columbia and that the need to apply the laws of British Columbia and Canada does not justify dismissal. (Pl.'s Resp. at 16-20.) Because the court is persuaded that the relevant private and public interest factors strongly favor litigation in British Columbia, Leaf's Motion to Dismiss should be granted based on forum non conveniens.
Leaf requests oral argument. The court, however, does not believe that oral argument would help resolve the pending motion. See LR 7-1(d)(1).
BACKGROUND
A. The Parties and Their Relationship
The court recites the facts as alleged in the Complaint, supplemented by undisputed facts from the parties' declarations and exhibits. TSG is an Oregon limited liability company with its principal place of business in Portland. (Am. Compl. ¶ 4.) TSG designs and develops mobile games and has subsidiaries located in Vancouver, British Columbia and Minsk, Belarus. (Id. ¶ 11.) All of TSG's executive and management decisions flow through TSG's controlling comanagers, Tougas and Dubois, both of whom reside in Oregon. (Pl.'s Resp. at 3-4; Tougas Decl. at 2, ECF No. 18-3.) Leaf is a British Columbia corporation with its principal place of business in Vancouver, British Columbia. (Am. Compl. ¶¶ 5-6.) Leaf licenses and publishes online games. (Id. ¶ 13.)
On June 16, 2021, Leaf and TSG entered into a Membership Interest Purchase Agreement. (Id. ¶¶ 12-13.) TSG's subsidiaries, TSG Minsk and TSG Vancouver, were also parties to the agreement. (Membership Agreement at 1, ECF No. 18-3, Ex. A.) Under the agreement, TSG would develop four games to be published and marketed by Leaf: Archer, Roll for Adventure, Bud Master, and a fourth title to be determined (together, the Subject Titles). TSG also agreed to issue Leaf stock shares equivalent to 20 percent ownership of TSG and grant Leaf a seat on its board of directors. In exchange, Leaf was to provide TSG sufficient funds to develop the Subject Titles, up to a maximum of $3 million. (Am. Compl. ¶¶ 14-17.) The parties were to work together to establish budgets for the Subject Titles. (Membership Agreement § 2.1(b).) The agreement has a “governing law” clause, which provides that it is to be governed by and construed under the laws of British Columbia, Canada. (Id. § 11.9.) It also contains a forum selection clause, which provides that any action arising out of the agreement “may be brought in the courts of the Province of British Columbia” and that those courts have “non-exclusive jurisdiction” over such actions. (Id. § 11.10.)
The forum selection clause is permissive, rather than mandatory. “A mandatory forum selection clause requires litigation to proceed in a particular jurisdiction, while a permissive forum selection clause simply bestows jurisdiction to that forum.” Meridian PO Fin. LLC v. OTRTire Grp. Inc., 507 F.Supp.3d 1148, 1159 (D. Ariz. 2020) (citing Hunt v. Wesson Foods, Inc. v.Supreme Oil Co., 817 F.2d 75, 77 (9th Cir. 1987) (distinguishing between mandatory and permissive forum selection clauses, explaining that consent to jurisdiction in a particular forum “does not mean that the same subject matter cannot be litigated in any other court”)). Leaf does not argue that the forum selection clause is mandatory under either federal or British Columbia law, and the clause explicitly provides that the jurisdiction of courts in British Columbia is “nonexclusive.” Because the forum selection clause is permissive, the court adheres to the traditional forum non conveniens analysis in resolving Leaf's Motion to Dismiss. SeeLavera Skin Care N.Am., Inc. v. Laverana GMBH & Co. KG, 696 Fed.Appx. 837, 838 (9th Cir. 2017) (explaining that traditional forum non conveniens test applies when contract at issue contains a permissive forum selection clause).
Around the same time that Leaf and TSG were negotiating and executing the Membership Agreement, Leaf's subsidiary (East Side Games, Inc.) was entering into separate agreements with TSG's Vancouver subsidiary. Effective April 1, 2020, the two subsidiaries executed agreements related to development of the games Archer and Fantasy Idle. (Archer Publishing Agreement at 1, ECF No. 20-6; Fantasy Idle Publishing Agreement at 1, ECF No. 207.) Effective September 29, 2021, East Side Games, Inc. and TSG Vancouver entered into a Software Development Services Agreement for Bud Master. (Bud Master Agreement at 1, ECF No. 20-8.)
Not long after the parties had executed the Membership Agreement, their relationship began to sour. In accordance with the agreement, TSG issued shares to Leaf and Leaf appointed its Chief Financial Officer to serve on TSG's board. (Am. Compl. ¶ 26; Bailey Decl. at 2, ECF No. 9.) But the parties struggled to implement other aspects of their agreement. For example, the parties clashed over development budgets for the Subject Titles. (Am. Compl. ¶ 27.) TSG also learned, after the Membership Agreement had been executed, that Leaf's “IdleKit” development software, which Leaf had represented would expedite development of the games, was “nothing more than a few spreadsheets.” (Id. ¶ 29.) And Leaf failed to market and promote the Subject Titles, impeding the games' success and preventing TSG from hitting benchmarks that would entitle it to additional investment, royalties, and revenue sharing under the agreement. (Id. ¶¶ 32, 34.) Meanwhile, Leaf was attempting to acquire full control of TSG's codebase for the games without TSG's consent. (Id. ¶ 38.) In October 2022, Leaf sent TSG a letter purporting to terminate their agreement. (Id. ¶ 36.)
B. Legal Actions
Following Leaf's attempt to terminate the Membership Agreement, TSG filed this action, asserting claims for breach of contract, breach of good faith and fair dealing, unjust enrichment, breach of fiduciary duty, and fraudulent inducement. (Id. ¶¶ 42-67.) Leaf moved to dismiss the action for lack of personal jurisdiction and forum non conveniens.
While the Motion to Dismiss was pending, TSG and TSG Vancouver filed a separate action in British Columbia against various defendants, including Leaf, related to the Archer publishing agreement. (Civil Claim, ECF No. 23-1.) In that action, TSG and its subsidiary make claims against Leaf for breach of confidence, knowing receipt of confidential information, misrepresentation, inducing breach of contract, conversion, intentional interference with economic relations, unjust enrichment, and conspiracy to deprive TSG of the benefits of the Archer publishing agreement. They make the same claims, plus claims for breach of contract and breach of good faith and honest performance, against East Side Games, Inc. (Id. ¶ 81.)
LEGAL STANDARD
The court applies federal law to decide questions of Forum non conveniens, even in cases governed by foreign substantive law. Glob. Commodities Trading Grp. v. Beneficio de ArrozCholoma, S.A., 972 F.3d 1101, 1111 (9th Cir. 2020).
Forum non conveniens is a common law doctrine allowing a court to decline to exercise its jurisdiction when there is a substantially more convenient foreign forum available. The doctrine does not “compel plaintiffs to choose the optimal forum for their claim.” RaveloMonegro v. Rosa, 211 F.3d 509, 514 (9th Cir. 2000). Rather, dismissal under Forum non conveniens is an “exceptional tool to be employed sparingly” and a “drastic exercise of the court's inherent power.” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011) (quotation marks omitted). A district court has discretion to “dispose of an action by a Forum non conveniens dismissal, bypassing questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant.” SinochemIntern. Co. v. Malaysia Intern. Shipping Corp., 549 U.S. 422, 432 (2007); see also Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142 (9th Cir. 2001) (District courts have discretion in determining whether the doctrine justifies dismissal.).
“[A] defendant invoking Forum non conveniens ordinarily bears a heavy burden in opposing plaintiff's chosen forum.” Sinochem, 549 U.S. at 430 (2007). To prevail on a motion to dismiss under Forum non conveniens, the moving party must show that there is an adequate alternative forum and that the balance of public and private interest factors supports dismissal. Glob. Commodities, 972 F.3d at 1111. A plaintiff's choice of forum is entitled to deference in that analysis. Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002). To overcome the deference accorded the chosen forum, the moving party must make “a clear showing of facts which establish such oppression and vexation of a defendant as to be out of proportion to plaintiff's convenience, which may be shown to be slight or nonexistant.” Ravelo, 211 F.3d at 514.
DISCUSSION
A. Adequate Alternative Forum
“An alternative forum is deemed adequate if: (1) the defendant is amenable to process there; and (2) the other jurisdiction offers a satisfactory remedy.” Carijano, 643 F.3d at 1225. Leaf represents that it is amenable to process in British Columbia. (Def.'s Mot. at 17.) Under the Membership Agreement, Leaf has already consented to jurisdiction there. (Membership Agreement § 11.10.) Leaf further represents that British Columbia offers TSG a satisfactory remedy. (Def.'s Mot. at 17.) TSG does not dispute that British Columbia is an adequate forum for this dispute. (See Pl.'s Resp. at 16-19.) The court concludes that the proposed alternative forum is adequate. See Juniper Networks, Inc. v. Andrade, Case No. 20-cv-2360-BLF, 2021 WL 3514103, at *4 (N.D. Cal. Aug. 10, 2021) (“Several district courts within the Ninth Circuit have found that the Canadian judicial system provides an adequate alternative forum for civil suits involving breach of contract and related claims.”).
B. Private and Public Interest Factors
1. Deference to TSG's Chosen Forum
“When a domestic plaintiff initiates litigation in its home forum, [that forum] is presumptively convenient.” Carijano, 643 F.3d at 1227 (citing Piper Aircraft v. Reyno, 454 U.S. 235, 255-56 (1981)). Although “a U.S. citizen has no absolute right to sue in a U.S. court, great deference is due plaintiffs because a showing of convenience by a party who has sued in his home forum will usually outweigh the inconvenience the defendant may have shown.” ContactLumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1449 (9th Cir. 1990). TSG is an Oregon company with its principal place of business in Oregon. As a domestic plaintiff initiating litigation in its home forum, TSG's choice of forum is entitled to great deference. That deference, however, is “far from absolute.” Ranza v. Nike, Inc., 793 F.3d 1059, 1076 (9th Cir. 2015).
2. Private Interest Factors
The private interest factors to be weighed in a Forum non conveniens inquiry are:
(1) the residence of the parties and the witnesses; (2) the forum's convenience to the litigants; (3) access to physical evidence and other sources of proof; (4) whether unwilling witnesses can be compelled to testify; (5) the cost of bringing witnesses to trial; (6) the enforceability of the judgment; and (7) all other practical problems that make trial of a case easy, expeditious and inexpensive.Lueck, 236 F.3d at 1145 (quotation marks and citations omitted). “In applying these factors, the district court should look to any or all of the above factors which are relevant to the case before it, giving appropriate weight to each.” Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1180 (9th Cir. 2006) (quotation marks omitted).
Residence of Parties and Witnesses and Costs of Bringing Witnesses to Trial. For efficiency, the court consolidates its discussion of the first and fifth factors outlined in Lueck. In assessing these factors, the court “examine[s] the materiality and importance of the anticipated witnesses' testimony and then determine[s] their accessibility and convenience to the forum.” Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335-36 (9th Cir. 1984). TSG is headquartered in Oregon; Leaf is headquartered in British Columbia. (Am. Compl. ¶¶ 4-5.) Residence of the parties is thus neutral. As for residence of the witnesses, however, Leaf points out that all its employees with knowledge of the agreement live in British Columbia. Further, TSG Vancouver is in British Columbia and its employees are potential witnesses. Leaf specifically identifies Bonar, a former employee of TSG Vancouver who played some role in initiating negotiations between TSG and Leaf, as a potential witness and a resident of British Columbia. (Def.'s Mot. at 18.) TSG responds by pointing to its employees, Dubois and Tougas, who are residents of Oregon.
Leaf has shown that the majority of the likely material witnesses are in British Columbia; only two likely witnesses reside in Oregon. It will therefore be more costly to transport material witnesses to Oregon. The court also notes that Leaf has employees who are potential witnesses in San Francisco, California, and TSG has employees in Minsk, Belarus. (Pl.'s Resp. at 17; Def.'s Mot. at 18.) Those employees, if called as witnesses, would have to travel to either forum. The first and fifth private interest factors slightly favor dismissal.
Convenience to the Parties. Leaf argues that the substantial inconvenience to it outweighs the limited convenience to TSG if this action is litigated in Oregon. (Def.'s Mot. at 18.) Relevant to this factor, Leaf has notified the court of an action in British Columbia whose parties, allegations, and likely witnesses overlap with this action. In the Canadian action, TSG is a plaintiff and Leaf (referred to in that action under its new name, East Side Games Group, Inc.) is a defendant. (Civil Claim ¶¶ 7, 10.) That action also names additional parties: TSG Vancouver as plaintiff; Leaf's subsidiary as defendant; and employees of both Leaf and its subsidiary as defendants. (Civil Claim ¶¶ 8, 11, 13-14; Lockwood Decl. at 2, ECF No. 20.) The action in British Columbia revolves around the alleged breach of the Archer publishing agreement between TSG Vancouver and Leaf's subsidiary. The Archer agreement contains a forum selection clause requiring that litigation arising from that contract be brought in British Columbia. (Archer Publishing Agreement § 21.)
Although the two actions assert breaches of different contracts, they are based on similar factual allegations, and are therefore likely to require some of the same evidence. For example, TSG alleges here that Leaf breached the Membership Agreement, including by (1) failing to devote the necessary marketing resources to all the Subject Titles, (2) shifting Archer into “auto pilot” mode, and (3) ceasing support and user acquisition for that game. (Am. Compl. ¶¶ 34-35, 45.) Likewise, TSG and TSG Vancouver allege in the Canadian action that Leaf's subsidiary breached the Archer agreement, including by (1) failing or refusing to create and execute a marketing plan, (2) shifting Archer into “auto pilot” mode, and (3) decreasing support for new user acquisition. (Civil Claim ¶ 48.)
TSG also alleges in both cases that, in entering into the agreements, it relied on representations by employees of Leaf or its subsidiary that the “IdleKit” development software would cut the time and resources TSG would need to develop the game(s). (Am. Compl. ¶¶ 24, 29; Civil Claim ¶¶ 25, 27.) In each case, TSG alleges that “IdleKit” was not as represented and did not expedite development. (Am. Compl. ¶ 29; Civil Claim ¶¶ 26, 32.) And in both cases TSG asserts that Leaf's conduct is part of a deliberate strategy to take developers' intellectual property without fair compensation. (Am. Compl. ¶¶ 38-39; Civil Claim ¶¶ 39-40.)
The two cases will likely involve many of the same witnesses. For instance, the Complaint here alleges that TSG relied on the promises of Bailey, Nilson, and Lew when they entered into the agreement. (Am. Compl. ¶ 22.) Those individuals are likely to be called as a witness in this case. Bailey and Nilson are both named defendants in the Canadian case. (Civil Claim ¶¶ 13-14.) Further, because all of TSG's managerial decisions flow through its controlling co-managers, Tougas and Dubois, they will likely be witnesses in both cases. If both cases are litigated in British Columbia, the parties can reduce expenses and limit the travel for out-of-town witnesses. If, instead, the two actions proceed in separate forums, coordination will be needed to avoid scheduling conflicts for the parties and key witnesses, and significant delays may result.
Requiring Leaf to defend related actions in different forums imposes a substantial burden, which outweighs the limited convenience to TSG in litigating one of its two cases against Leaf in this jurisdiction. See, e.g., Gambra v. Intern. Lease Fin. Corp., 377 F.Supp.2d 810, 824 (C.D. Cal. 2005) (noting that it would be “more convenient to resolve all claims involving defendants” in a single forum); In re Air Crash Over Mid-Atl. on June 1, 2009, 760 F.Supp.2d 832, 844 (N.D. Cal. 2010) (“[T]he ability to bring parties together in [the alternative forum] in a procedurally sensible fashion [favors] dismissal ....”). The parties' convenience is best served by bringing the related cases together in a single jurisdiction. This factor favors dismissal.
Access to Physical Evidence. As to the location of evidence, Leaf contends that physical evidence in the case is likely to be documents, and that those documents are in Leaf's British Columbia offices. (Def.'s Mot. at 18.) TSG responds that (1) significant physical evidence in unlikely to be necessary, as “most, if not all, evidence in this case will be in electronic form on each custodian's computer”; and (2) there is equivalent inconvenience in transporting documents from TSG's offices in Oregon to British Columbia, if trial is held there, as there is in transporting documents from British Columbia to Oregon, if trial is held here. (Pl.'s Resp. at 15, 17). The court also notes that the physical evidence that Leaf has identified in British Columbia is within its control; Leaf can bring that evidence to court regardless of the forum selected. See Neuralstem, Inc. v. ReNeuron, Ltd., 365 Fed.Appx. 770, 772 (9th Cir. 2010) (explaining that district court erred in giving weight to location of documentary evidence in England, as “most if not all of the documentary evidence located in England [was] within [the defendant]'s control, and thus [could] be brought to court wherever the forum”). Because the parties will be able to access the documentary evidence in either forum, this factor is neutral.
Whether Unwilling Witnesses Can be Compelled to Testify. In assessing this factor, the court does not simply compare the number of potential witnesses subject to compulsory process in each locale. Boston Telecomms. Grp. Inc. v. Wood, 588 F.3d 1201, 1209 (9th Cir. 2009). Instead, before asking whether witnesses are beyond the reach of compulsory process, the court first asks “whether it has been alleged or shown that witnesses would be unwilling to testify.” Carijano, 643 F.3d at 1231.
Leaf lists many potential witnesses in British Columbia who it says cannot be compelled to attend a trial or hearing in Oregon. (Def.'s Reply at 9, ECF No. 19.) But Leaf does not represent that any of those witnesses would be unwilling to testify, needing compulsory process. Indeed, most of the potential witnesses that Leaf identifies are employees of the parties. (Def.'s Mot. at 18.) Those witnesses are “under the control of” the parties and “can be brought to court, no matter the forum.” Lueck, 236 F.3d at 1146 . This factor is neutral.
Enforceability of Judgment. Leaf argues that this factor favors dismissal because any judgment rendered against Leaf would have to be brought to British Columbia to be enforced against it. (Def.'s Mot. at 18.) Although the court agrees with TSG that a judgment rendered here would be enforceable in British Columbia, see, e.g., Juniper Networks, 2021 WL 3514103, at *9 (“Judgments rendered by United States District Courts and Canadian courts are enforceable in both countries.”), the fact that any judgment would have to be enforced in British Columbia favors dismissal. Cf.Leetsch v. Freedman, 260 F.3d 1100, 1104-05 (9th Cir. 2001) (holding that this factor weighed in favor of German forum where defendants had property in Germany, making any judgment there enforceable).
Other Practical Problems. Leaf further points out that, if the action remains in this forum, the parties will have to hire experts on Canadian contract law. (Def.'s Mot. at 19.) Such experts would be unnecessary if the parties litigated the case in British Columbia. This factor favors dismissal.
3. Public Interest Factors
The public interest factors in a Forum non conveniens analysis are: “(1) the local interest in the lawsuit; (2) the court's familiarity with the governing law; (3) the burden on local courts and juries; (4) congestion in the court; and (5) the costs of resolving a dispute unrelated to a particular forum.” Carijano, 643 F.3d at 1232 (quoting Boston Telecomms., 588 F.3d at 1211).
Local Interest in the Controversy. The local interest factor “ask[s] only if there is an identifiable local interest in the controversy, not whether another forum also has an interest.” Tuazon, 433 F.3d at 1182; see also Boston Telecomms., 588 F.3d at 1212 (noting that whether the chosen forum “has more of an interest than any other jurisdiction” is not relevant).
TSG is an Oregon company with at least two Oregon employees. Oregon has an interest in protecting the commercial interests of businesses in the state. See, e.g., Dole, 303 F.3d at 1119 (“California has an interest in protecting corporations based in California.”); Gates, 743 F.2d at 1336 (“Arizona also has an interest in protecting its companies . . . to preserve the state's vitality.”). Although Leaf persuasively argues that British Columbia has a substantial interest in the litigation, that does not alter the conclusion that Oregon also has an identifiable local interest. This factor therefore weighs against dismissal.
Court Familiarity with Governing Law. “[T]he need to apply foreign law strongly favors dismissal based on Forum non conveniens.” Loya v. Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656, 665 (9th Cir. 2009); see also Piper Aircraft, 454 U.S. at 260 (“[T]he need to apply foreign law point[s] toward dismissal.”). Yet “this factor alone is not sufficient to warrant dismissal when a balancing of all relevant factors shows that the plaintiff's chosen forum is appropriate.” Piper Aircraft, 454 U.S. at 260 n.29.
The parties recognize that, under the agreement, resolving this case requires interpreting their contract under the laws of British Columbia and Canada. (Def.'s Mot. at 19; Pl.'s Resp. at 18.) TSG points out, however, that Leaf has not shown that there is any significant difference between the contract law of Oregon and British Columbia. (Pl.'s Resp. at 18.) Even so, the court concludes that the need to identify and apply the laws of British Columbia and Canada, with which the court has no familiarity, is a significant burden. This factor strongly favors dismissal.
Burden on Local Court and Juries. In assessing this factor, courts in the Ninth Circuit compare the relative burdens on the courts and juries in the chosen and alternative forums. Carijano, 643 F.3d at 1233 (holding that it was not error for district court to find this factor neutral where courts in both forums would be similarly burdened); Power Integrations, Inc. v.Chan-Woong Park, Case No. 16-cv-2367-BLF, 2017 WL 733224, at *10 (N.D. Cal. Feb. 7, 2017) (holding that this factor weighed against dismissal where “slightly lesser burden would be imposed on courts in [the chosen] forum than courts in Korea”); Lavera Skin Care N. Am., Inc. v. Laverana GMBH & Co. KG, Case No. 2:13-cv-2311-RSM, 2014 WL 7338739, at *9 (W.D. Wash. Dec. 19, 2014) (holding that this factor pointed toward dismissal where it would be less costly for German court to manage the case), aff'd, 696 Fed.Appx. 837 (9th Cir. 2017).
Resolving this case would impose a greater burden on an Oregon court and jury than a Canadian court and jury. It would be less burdensome for a Canadian court to interpret, and a Canadian jury to apply, Canadian law. Further, because there is related litigation in British Columbia with overlapping evidence and witnesses, management of this case would likely impose a lesser burden on a court in British Columbia than it would on this court. After comparing the burdens on each forum, the court concludes that this factor favors dismissal.
Court Congestion. “The fourth public interest factor considers the relative congestion of the dockets of [the chosen] forum and the proposed alternative forum, and whether the alternative forum would offer a speedier trial.” Juniper Networks, 2021 WL 3514103, at *7 (citing Gates, 743 F.2d at 1337). Leaf has not submitted evidence of the relative congestion of this court and British Columbia courts. Accordingly, this factor is neutral.
Costs of Resolving a Dispute Unrelated to the Forum. This factor reflects the concern that “[j]ury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947). Where, as here, the case arises out of a contract entered into by a local business suing in its home forum, the dispute relates to the forum. Juniper Networks, 2021 WL 3514103, at *7; see alsoTuazon, 433 F.3d at 1182 (“[T]he case is related to Washington because [plaintiff] resides there.”) This factor weighs against dismissal. Seeid. (holding that this factor favored plaintiff's chosen forum where there was “no cost in resolving a case unrelated to the forum” because the case related to plaintiff's chosen forum).
C. Weighing the Factors
“The plaintiff's choice of forum will not be disturbed unless the ‘private interest' and ‘public interest' factors strongly favor trial in the foreign country.” Dole, 303 F.3d at 1118. District courts have flexibility in balancing those factors, mindful that “the central focus of the Forum non conveniens inquiry is convenience.” Piper Aircraft, 454 U.S. at 249-50.
The private interest factors strongly favor dismissal. Although TSG's chosen forum is presumptively convenient, Leaf has shown that any convenience to TSG in litigating in this forum is far outweighed by the inconvenience to Leaf. The public interest factors also favor dismissal: the burdens associated with applying foreign law outweigh the local interest in this controversy. Leaf has carried its burden of demonstrating that TSG's chosen forum is “so oppressive and vexatious to be out of proportion to [TSG]'s convenience,” Tuazon, 433 F.3d at 1180, warranting use of the “exceptional tool” of Forum non conveniens dismissal. Carijano, 643 F.3d at 1224.
Because British Columbia, Canada is an adequate alternative forum, and because the public and private interest factors strongly favor litigation there, the court recommends granting Leaf's Motion to Dismiss based on Forum non conveniens.
CONCLUSION
For the above reasons, the Motion to Dismiss (ECF No. 8) should be GRANTED. Any other pending motions should be DENIED as MOOT.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within 14 days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.