Opinion
No. 97-4530-B
January, 1999
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS FOR FORUM NON CONVENIENS
Plaintiff Emma Louise Rhodes seeks monetary damages for personal injuries she sustained in a diving accident which occurred in Saudi Arabia on August 23, 1994, allegedly as a result of defendants' negligence and breach of implied warranty. Defendants, ITT Sheraton Corporation (ITT Sheraton), Sheraton International, Inc. (Sheraton International), Sheraton Overseas Management Corporation (Sheraton Overseas), Sheraton Middle East Management Corporation (Sheraton Middle East), and John Veelenturf, now move to dismiss plaintiff's complaint for forum non conveniens. They argue that Saudi Arabia is an adequate alternative forum and that private and public interests weigh in favor of dismissal. After hearing and for the reasons set forth below, defendants' motion to dismiss is DENIED.
BACKGROUND
Plaintiff is a British citizen and resident of Great Britain. While on summer break from her university in 1994, she visited her parents at their home in Jeddah, Saudi Arabia. On August 23, 1994, she and her sister met two of their friends at the Red Sea Beach Resort, which is part of the Sheraton Jeddah Hotel and Villas (Jeddah Sheraton). The resort complex on that date encompassed a beach, a large concrete wharf, a wooden platform or jetty and a lagoon. Coral stretched out from under the jetty and around the edge of the lagoon. Plaintiff struck her head on this coral when she dove into the lagoon from the jetty. She lay in the water, face down and unable to move, until she was pulled out and taken to a nearby hospital.
Neither the Jeddah Sheraton nor its Saudi owner, Saudi Brothers Commercial Company, is a defendant. Under the Sheraton International Management Agreement between Sheraton Middle East and the Saudi Brothers Commercial Company, Sheraton Middle East manages and operates the Jeddah Sheraton. Sheraton Middle East is a wholly owned subsidiary of ITT Sheraton. At all times relevant to this action, ITT Sheraton employed John Veelenturf as a Vice President and Director of Fire, Life Safety and Environmental Health. Veelenturf now is retired and living in Maine. ITT Sheraton also owns Sheraton International, which granted Saudi Brothers Commercial Company a license to use certain Sheraton trademarks. The final defendant, Sheraton Overseas, is a wholly owned subsidiary of Sheraton International. Each of the corporate defendants is a Massachusetts citizen with its principal place of business in Boston.
Plaintiff sustained a high level spinal injury as a result of her dive. She spent approximately three months in a Saudi hospital, where she underwent surgery to fuse her spine, before transferring to a hospital in England. She remained in the English hospital for 18 months. Today, plaintiff is tetraplegic. She cannot move her left arm or either of her legs and is limited to minimal movement of her right arm. Unable to care for herself, plaintiff requires assistance for daily activities such as eating, bathing, dressing, changing her catheter and emptying her bowels. She attempted to finish her degree in accounting and financing but could not take certain required courses due to her disabilities. Plaintiff's expert estimates that her medical expenses resulting from the accident will exceed ten million dollars.
DISCUSSION
Under G.L.c. 223A, § 5, I may dismiss or stay an action upon finding "that in the interest of substantial justice the action should be heard in another forum."
Massachusetts courts have incorporated into the state forum non conveniens analysis standards and principles enunciated in federal cases discussing the federal common law doctrine. See New Amsterdam Casualty Co. v. Estes, 353 Mass. 90, 95 (1967); Green v. Manhattanville College, 40 Mass. App. Ct. 76, 78, cert. denied, 422 Mass. 1107 (1996) (same analysis under G.L.c. 223A, § 5, as under common law doctrine of forum non conveniens). The forum non conveniens inquiry involves two steps. See Mercier v. Sheraton Int'l, Inc., 935 F.2d 419, 423-424 (1st Cir. 1991), cert. denied, 508 U.S. 912 (1993). First, I must consider whether an adequate alternative forum is available. If an adequate alternative forum does exist, I then must determine whether private and public interests strongly favor litigating the claim in that forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509 (1946).
Adequate alternative forum
Defendants cite federal cases granting motions to dismiss on forum non conveniens grounds when the alternative forum was Saudi Arabia. Implicit in these decisions is an acceptance of Saudi Arabia as an adequate alternative forum. None of the cases, however, addressed concerns similar to those raised by plaintiff. See, e.g., Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 290 (5th Cir. 1989) (parties previously agreed to bring all disputes before Saudi tribunal and nothing indicated that Saudi forum would treat plaintiff unfairly); Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 801 (7th Cir. 1997) (male plaintiff was citizen of Saudi Arabia); Shields v. Mi Ryung Constr. Co., 508 F. Supp. 891, 896 (S.D.N.Y. 1981) (plaintiff attempted to "cast aspersions" upon Saudi legal system without any supporting evidence); Tisdale v. Shell Oil Co., 723 F. Supp. 653, 654-655, 659 (M.D. Ala. 1987) (in absence of undue influence, unequal bargaining or evidence that Saudi law is inadequate, choice of forum clause requiring that all disputes be referred to Saudi Labor Commission is enforceable); Jeha v. Arabian Am. Oil Co., 751 F. Supp. 122, 125-126 (S.D. Tex. 1990), aff'd, 936 F.2d 569 (5th Cir. 1991) (plaintiffs offered no evidence that Saudi forum was inadequate). Although my finding regarding the private and public interests in this case renders a final determination as to the adequacy of a Saudi forum unnecessary, I note that plaintiff would face significant procedural disadvantages in Saudi Arabia. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22 (1981) (forum is inadequate when there is danger that plaintiff will be treated unfairly).
Plaintiff also would be disadvantaged if Saudi substantive law were to govern this case, as discussed in footnote 9.
The first significant drawback to trial of this case in Saudi Arabia is that plaintiff would not be permitted to testify. See Supplemental Affidavit of Frank E. Vogel, at 3. All parties are presumed to be prejudiced in favor of themselves and therefore are not considered to be reliable witnesses. Id.; Supplemental Affidavit of Hassan Mahassni, at 3. Plaintiff could submit written assertions that would be made part of the record. Id. If a defendant were to deny any assertion made by plaintiff, however, she would be forced to prove that assertion by other means. Id.
Plaintiff's ability to prove her allegations would also be limited by the fact that Saudi courts give more weight to oral testimony than written testimony. See Peter D. Sloane, The Status of Islamic Law in the Modern Commercial World, 22 Int'l L. 743, 751 (1988). Thus, defendants' oral testimony that they took certain safety precautions would carry more weight than any documents plaintiff could submit to rebut their testimony. Prevailing in Saudi Arabia would be even more difficult for plaintiff in light of the requirement that, "[i]n financial matters, a party must produce two male witnesses or one male and two female witnesses in order to prove a point." Id.
The lack of pretrial discovery procedures in Saudi Arabia would stymie plaintiff's ability to offer such documents. David J. Karl, Note, Islamic Law in Saudi Arabia: What Foreign Attorneys Should Know, 25 Geo. Wash. J. Int'l L. Econ. 131, 150 (1992). Although according to defense expert Frank E. Vogel parties may request that the court demand any necessary documents from another party, the court need not exercise its wide discretion in her favor.
Another disadvantage to a Saudi forum is that Saudi courts do not follow any uniform rules of procedure. Joseph L. Brand, Aspects of Saudi Arabian Law and Practice, 9 B.C. Int'l Comp. L.R. 1, 11 (1986). Every party to a case, "sitting and facing the qadi (the judge), conversationally presents its evidence which the qadi hears and weighs." Id. Cross-examination is limited, if allowed at all. Id. at 12 n. 62 ("The qadi usually denies cross examination and when he allows it, only he directs the questions suggested by the examining party.") The qadi decides when enough evidence has been heard and at that point announces a decision in open court. Id. at 12. Saudi Arabia does not offer parties the opportunity to be heard by a jury. Id. at 30.
In addition to no rules of civil procedure, no system of binding judicial precedent or case law exists in Saudi Arabia. Nancy B. Turck, Dispute Resolution in Saudi Arabia, 22 Int'l Law. 415, 443 (1988); Brand, supra at 11. Plaintiff would not be able to predict or expect any particular rulings on issues of law that are established in Massachusetts. That this and the other procedural differences would apply equally to the defendants does not minimize that fact that a Saudi forum would deprive plaintiff of basic procedures which she expects to enjoy in a Massachusetts forum.
Finally, the existence of biases against women and non-Muslims in Saudi Arabia would impose additional disadvantages on plaintiff. Defendants' expert attributes the differential treatment based on gender and religion to "long-standing, well-known provisions in the law." Supplemental Affidavit of Frank E. Vogel at 2. Although defendants promise to ensure that any recovery by plaintiff in a Saudi court would not be diminished because of her gender and religion, their guarantee cannot insulate plaintiff entirely from the systemic prejudices.
Private and public interests
Even if the cumulative effect of the factors discussed above were not enough to deem Saudi Arabia an inadequate alternative forum, dismissal still would be improper if private and public interests weigh in favor of trial in Massachusetts. Mercier v. Sheraton Int'l Inc., 935 F.2d at 427. The "guiding principle" of the forum non conveniens analysis is that a plaintiff's "choice of forum should rarely be disturbed unless the balance of both private and public concerns strongly favors the [defendants'] motion." Green v. Manhattanville College, 40 Mass. App. Ct. at 79. Defendants bear the burden of "showing circumstances so strongly in [their] favor that plaintiff should be denied [her] right to bring suit in Massachusetts." See Minnis v. Peebles, 24 Mass. App. Ct. 467, 473 (1987); Walton v. Harris, 38 Mass. App. Ct. 252, 258, cert. denied, 420 Mass. 1102 (1995). Having balanced the factors set forth below, I conclude that defendants have not satisfied their burden.
Private interests considered in the forum non conveniens analysis include the relative ease of access to sources of proof; the availability of compulsory process to obtain testimony of unwilling witnesses; the cost of obtaining attendance of willing witnesses; and any practical factors that would make the trial easy, expeditious, and inexpensive. W.R. Grace Co. v. Hartford Accident Indem. Co., 407 Mass. 572, 578 (1990); Green v. Manhattanville College, 40 Mass. App. Ct. at 80; Mercier v. Sheraton Int'l, Inc., 935 F.2d at 424.
Another factor courts consider is the possibility of a view. Defendants argue that photographs of the accident site would be insufficient, especially because the scene has been altered by third-parties. If the scene has been altered, however, there is no purpose in viewing it, and therefore this factor is inapplicable.
Overall ease of access to sources of proof does not point strongly to either forum. On the issue of liability, defendants have access to their own corporate documents which, according to ITT Sheraton's senior vice president, are located in Boston, Egypt, and Saudi Arabia. On the issue of damages, plaintiff has accepted the burden of producing all relevant medical documents whether located in England or Saudi Arabia.
Access and cost considerations related to witnesses favor trial in Massachusetts. Defendants' argument that they cannot compel attendance at trial in Massachusetts of "[a]ll of the eyewitnesses to the incident" is unavailing for several reasons. First, eyewitnesses to the accident include plaintiff, her sister, and her friends. Defendants do not argue that these witnesses would be unwilling to appear in Massachusetts; presumably they would be present at their own or plaintiff's expense. Only one of the two resort employees who were in the beach area at the time of the accident actually witnessed plaintiff's dive. Both of these witnesses continue to work for the Jeddah Sheraton. Defendants have presented no evidence that either of them would be unwilling to appear at trial in Massachusetts. Moreover, plaintiff alleges that her accident was caused by defendants' negligence. Defendants do not claim any inability to compel attendance of witnesses related to the alleged negligence, many of whom are defendants' employees and live in New England.
Regarding the two languages involved in this case, the private interest in making the trial "easy, expeditious, and inexpensive" also is furthered by a Massachusetts forum. See W.R. Grace Co. v. Hartford Accident Indem. Co., 407 Mass. at 578. All court proceedings in Saudi Arabia are in Arabic. Turck, supra at 441. A trial conducted in Arabic would have at least two adverse consequences. First, whereas all the parties and most if not all the witnesses speak English, some — including plaintiff — do not speak Arabic. The parties would be forced to rely on translators, significantly increasing the costs of litigation. Second, all documents submitted to a Saudi court must be translated into Arabic. Id. If the Sheraton International Management Agreement is any indication, many if not all of the corporate documents are in English. As for medical documents, only records for the three months that plaintiff spent in a Saudi hospital might already be in Arabic; records for more than 35 months of treatment would need to be translated from English.
Defendants have not identified which, if any, witnesses do not speak English; it is clear that if there is a need for translation in a Massachusetts trial, it would be less than that in a Saudi trial.
The agreement provides that English shall be the language used in arbitration.
Factors of public interest include administrative burdens; trying a diversity case in a forum that is at home with the applicable law; avoidance of unnecessary problems in conflict of laws; and unfairness of burdening citizens in an unrelated forum with jury duty. W.R. Grace Co. v. Hartford Accident Indem. Co., 407 Mass. at 578; Mercier v. Sheraton Int'l, Inc., 935 F.2d at 424.
At this stage, when the parties have not had an opportunity to submit briefs on choice of law, it is unclear what substantive law governs. Defendants assume that Saudi Arabian tort law is applicable based on Massachusetts choice of law principles. These principles do not clearly point to Saudi law; several factors appear to favor Massachusetts law. Even if Saudi law were to apply, application of a foreign law, while not ideal, need not be a determinative factor in the forum non conveniens analysis. See Kearsarge Metallurgical Corp. v. Peerless Ins. Co., 383 Mass. 162, 169 (1981) (court declined to dismiss action governed by other than Massachusetts substantive law).Public interest considerations weighing in favor of trial in Massachusetts include the fact that this is the corporate defendants' home forum, see Reid-Walen v. Hansen, 933 F.2d 1390, 1400 (8th Cir. 1991) ("The defendant's home forum always has a strong interest in providing a forum for redress of injuries caused by its citizens."), and that defendants' alleged negligence occurred at least in part in Massachusetts. Trial in Massachusetts therefore would not burden local jurors with an entirely foreign controversy. See Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 947 (1st Cir. 1991), cert. denied, 502 U.S. 1095 (1992) (relation between chosen forum and lawsuit must not be so attenuated that case is an "imposition" on chosen court). Cf. Jeha v. Arabian Am. Oil Co., 751 F. Supp. at 126 (dismissal for forum non conveniens appropriate when only connection to chosen court was location of principal office of defendant's subsidiary, a nonparty); Shields v. Mi Ryung Constr. Co., 508 F. Supp. at 894 (dismissal for forum non conveniens appropriate when defendants' operation in chosen forum had "absolutely nothing to do" with lawsuit).
Sources of Massachusetts choice of law principles include the Restatement (Second) of Conflict of Laws and Professor R.A. Leflar's American Conflicts Law. Bushkin Assocs., Inc. v. Raytheon, Inc., 393 Mass. 622, 632-634 (1985). Under the Restatement, factors relevant to the choice of law are the needs of interstate and international systems; relevant policies of the forum; relevant policies and interests of other interested states; protection of justified expectations; basic policies underlying particular field of law; certainty, predictability and uniformity of result; and ease in the determination and application of the law to be applied. Restatement (Second) of Conflict of Laws at § 6(2) (1971). Considerations proposed by Professor Leflar are predictability of results; maintenance of interstate and international order; simplification of judicial task; advancement of forum's governmental interests; application of the better rule of law. R.A. Leflar, American Conflicts Law § 95, at 279 (4th ed. 1986).
I. Differences between trial held in Saudi Arabia rather than Massachusetts. A. Procedural disadvantages to plaintiff in Saudi Arabian court
454 U.S. 235 247 454 U.S. 235255 637 F.2d 775794720 F.2d 224226
No public interest factor at this point clearly weighs in favor of a Saudi forum. Plaintiff's choice of forum should not be disturbed solely because she is a British citizen and resident of Great Britain. See Lony v. E.I. Du Pont de Nemours Co., 886 F.2d 628, 634 (3d Cir. 1989) (foreign plaintiff's choice of forum should not automatically be denied full deference); Nieminen v. Breeze-Eastern, 736 F. Supp. 580, 583-584 (D.N.J. 1990) (reluctance to grant foreign plaintiff full deference may be overcome by evidence that choice of forum is based on convenience). Cf. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-256 n. 23 (1981) (court may give less weight to foreign plaintiff's choice of forum). Moreover, defendants have failed to establish that the Saudi court system is sufficiently less conjested than the Massachusetts court system to justify dismissal of plaintiff's complaint.
ORDER
For the foregoing reasons, this Court orders that defendants' motion to dismiss for forum non conveniens is DENIED.
_____________________________ Margaret R. Hinkle Justice of the Superior Court
DATED: January, 1999
1. Amount of compensation: disparities based on gender and religion.
Females are compensated less than males in personal injury cases because of the notion that males are breadwinners whereas females are dependents. Non-Muslims are compensated less than Muslims for personal injuries. Defense expert Frank E. Vogel states that this disparity is justified by the "partly separate or independent civil status of non-Muslim citizens of an Islamic state, involving different taxation, an independent system of family laws, exemption from military duty, and so forth." Vogel does not elaborate on how the taxation differs, i.e., whether non-Muslims are taxed more or less than Muslims. Actual expenses such as medical bills are compensated in full without regard to the victim's gender or religion.The amount of compensation for personal injury ("diyah" or "diya") is fixed by law. David J. Karl, Note, Islamic Law in Saudi Arabia: What Foreign Attorneys Should Know, 25 Geo. Wash. J. Int'l L. Econ. 131, 163 (1992). The diyah payable as of 1989 was as follows: the equivalent to $32,000 for the death of a Muslim male; $16,000 for the death of a Muslim female or non-Muslim male; and $8000 for the death of a non-Muslim female. Peter D. Sloane, The Status of Islamic Law in the Modern Commercial World, 22 Int'l Law. 743, 750 (1988). These amounts are doubled if the death occurs during three religiously significant months based on the Islamic calendar. Id. Diyah for injuries less than death is calculated as a fraction of the full diyah and therefore never exceeds one diyah. Id.; Karl at 163 (compensation for loss of an eye is half of diyah; loss of a finger or toe results in one-tenth of diyah).
2. Amount of compensation: damages in general.
Consequential, indirect, and speculative damages generally are viewed as nonrecoverable through a Saudi court. Nancy B. Turck, Dispute Resolution in Saudi Arabia, 22 Int'l Law. 415, 441 (1988). If she establishes defendants' liability, plaintiff can only expect to recover actual medical expenses and a fraction of her diyah.Two Saudi Arabian doctrines that are not directly applicable to this case reflect Saudi public policies that would work to the plaintiff's disadvantage in terms of damages. First is the concept of "riba:" unearned or unjustified profit is forbidden "on the basis that `receiving something in exchange for nothing is immoral.'" Karl at 152; Sloane at 745. "The prohibition against riba extends to bargains where one party receives money without giving something of equal value to the other party. It applies, for example, to subleasing property for more than the rent paid to the owner, or reselling a bought object for a higher price." Karl at 152. The prohibition against riba also voids provisions of a contract awarding interest. Turck at 441; Sloane at 748; Karl at 154 (discussing ways to circumvent interest prohibition).
The second doctrine is "gharar" which means uncertainty or risk. Any contract involving speculation or inherent uncertainty or risk is void. Karl at 153 (using example of contract which leaves open amount or date of payment, or is tied to fluctuating standard such as market price). Application of the policy behind "gharar" to the plaintiff's case would preclude the award of intangible, speculative damages such as future pain and suffering, future medical expenses (which plaintiff estimates to be $10,577,298.23), and loss of earning capacity. Vogel states that judges have discretion to add to a damage award, e.g., if there is a high likelihood of future medical expenses.
3. Tort law
"Torts are subsumed under private actions and do not exist as a distinct and highly developed field of law." Joseph L. Brand, Aspects of Saudi Arabian Law and Practice, 9 B.C. Int'l Comp. L.R. 1, 28 (1986). "Agency is not recognized within the concept of torts Islamic philosophy being that in general one is always responsible for his own acts." Id.C. Miscellaneous considerations
Defendants promise to ensure that any recovery by plaintiff in a Saudi Arabian court will not be diminished because of her gender or religion. This willingness to pay the plaintiff "additional damages sufficient to remedy any disparity between women and men or between Muslim and Non-Muslim" concedes that there are such disparities.There are biases in the system that, although they would not directly jeopardize plaintiff's rights, reflect a systemic prejudice from which it would be difficult to determine if plaintiff was insulated. One example is that non-Muslim witnesses are not allowed to testify against Muslim defendants. Defense expert Hassan Mahassni dismisses this fact as inapplicable to the plaintiff's suit which was brought against non-Muslim corporations. In support of his opinion that plaintiff's status as a non-Muslim woman will not prejudice her rights, Mahassni states that Saudi Arabian judges have "wide discretion to evaluate and accept evidence including non-Muslim testimony." The fact that judges have wide discretion gives rise to more concern given that bias against non-Muslims and women pervades the society. For example, a judge who has unfettered discretion to deny cross-examination may be less likely to permit the cross-examination of a male Muslim witness than a non-Muslim or female witness
Frank Vogel cites "a cardinal principle of Saudi Arabian and Islamic law that judges treat all parties equally and fairly." In the same paragraph, he recognizes that non-Muslims and women receive lesser awards for physical injury in tort cases. He attributes the disparity to "long-standing, well-known provisions in the law" rather than "from any bias or arbitrary act of the judge or the system." Apparently, differential treatment based on gender and religion is so entrenched in the Saudi Arabian legal system that it no longer is considered to be bias.
Islamic law, the only law in which Saudi judges are trained, controls all cases in Saudi Arabia. Karl at 134 ("Islam is an entire way of life: a religion, an ethic, a lifestyle, and a legal system all in one.") "[T]he two primary sources of Islamic law are the Qur'an, the word of God, and the Sunnah, the pronouncements and practices of the Prophet." Id. at 135.
[Question as to which substantive law applies. Defendant states it would be "manifestly inconvenient to burden Boston jurors with wrestl[ing] with substantive principles of Saudi Arabian tort law," which defendants conclude is applicable based on Massachusetts choice of law principles. Restatement (Second) of Conflict of Laws Leflar factors do not clearly point to applicability of Saudi law. See Bushkin, 393 Mass. 622, 631-633 (1985). Restatement: needs of interstate and international systems; relevant policies of forum; relevant policies and interests of other interested states; protection of justified expectations; basic policies underlying particular field of law; certainty, predictability and uniformity of result; and ease in the determination and application of the law to be applied. Leflar: predictability of results; maintenance of interstate and international order; simplification of judicial task; advancement of forum's governmental interests; application of the better rule of law (U.S.).]
II. Witnesses
Defendants argue that dismissal of the case is appropriate because they cannot compel attendance at trial in Massachusetts of eye witnesses from Saudi Arabia. They present evidence that employees of the hotel, with the exception of the general manager and other executives who may be on Sheraton's payroll, are the employees of the hotel owner. The hotel owner is a Saudi Arabian corporation. Defendants assert that the only eye witnesses are not subject to the subpoena power of a Massachusetts court. Eye witnesses to the accident include the plaintiff, her sister, and her friends, all of whom would be present at trial presumably at the plaintiff's expense. Two resort employees, both of whom continue to be employed by the hotel, were in the beach area at the time of the accident. Only one of them saw the accident. Moreover, plaintiff alleges that her accident was caused by defendants' negligent acts, some of which occurred in the United States. Key witnesses to the alleged negligence, e.g., John Veelenturf, are either located in Massachusetts or subject to the subpoena power of a Massachusetts court.Defendants also argue that photographs of the accident site would be insufficient, especially because the scene has been altered by third-parties. If the scene has been altered, however, there is no purpose in taking a view.
III. Forum non conveniens
A judge's forum non conveniens determination will be reviewed under an abuse of discretion standard. Mercier v. Sheraton Int'l, Inc., 935 F.2d 419, 423 (1st Cir. 1991) (abuse of discretion only where court failed to consider material factor; substantially relied on an immaterial factor; or assessed appropriate factors but clearly erred in weighing factors correctly considered).The threshold inquiry of the forum non conveniens analysis is whether an adequate alternative forum is available. See Mercier, supra at 423-424; see also Green v. Manhattanville College, 40 Mass. App. Ct. 76, 81 (1996). Only in "rare circumstances where the remedy offered by the alternative forum is clearly unsatisfactory" should a court find that the alternative forum is inadequate. Piper Aircraft Co., supra at 254 n. 22 (forum is inadequate when there is danger that plaintiff will be deprived of any remedy or treated unfairly; forum need not be considered inadequate solely because plaintiff's potential damage award might be smaller).
If an adequate alternative forum exists, the court must then determine that considerations of convenience and judicial efficiency strongly favor litigating the claim in the alternative forum. This determination is made by balancing the various private and public interests. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509 (1947). Private interests include relative ease of access to sources of proof; availability of compulsory process to obtain testimony of unwilling witnesses; cost of obtaining attendance of willing witnesses; possibility of view of premises if view would be appropriate; and practical problems such as language. Mercier, supra at 424. Public interests include administrative considerations; having trial of diversity case in forum that is at home with the law that must govern the action; avoidance of unnecessary problems in conflict of laws; and unfairness of burdening citizens in an unrelated forum with jury duty. Id. [Will set out factors as applied in this case: e.g., most of the witnesses speak English but not Arabic (including plaintiff); Massachusetts is defendants' home forum.]
"[U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil Corp., supra at 508; Shields v. Mi Ryung Const. Co., 508 F. Supp. 891, 894 (1981) (defendant's burden is increased by fact that travel and communications are far easier and more convenient now than when Gulf Oil was decided).
IV. Cases where court dismissed case in favor of litigating in Saudi Arabia.
Kamel v. Hill-Rom Co., Inc., 108 F.3d 799 (7th Cir. 1997). Appeals court found no abuse of discretion in district court's determination that Saudi Arabia is an adequate alternative forum for contract and tort claims asserted against Indiana defendant who consented to Saudi jurisdiction. Factors in favor of trial in Saudi Arabia rather than Indiana:• Plaintiff is male, presumably Muslim, citizen of Saudi Arabia.
• Dozens of contracts which are written in Arabic and which form the basis of the parties' dispute remained in Saudi Arabia.
• Aside from several of defendant's principals, all witnesses are in Saudi Arabia.
• Indiana has mere passing interest in injury that occurred in Saudi Arabia.
• Saudi law applied; Indiana court did not want to delve into tenets of unfamiliar legal system.
In re Disaster at Riyadh Airport, Saudi Arabia, 540 F. Supp. 1141 (D.D.C. 1982). Factors in favor of trial held in Saudi Arabia rather than in California:
• Overall ease of access to sources of proof would be furthered by Saudi trial.
• Defendants would concede liability if cases transferred to foreign forum.
• Cost considerations related to witnesses favor trial in foreign forum.
• California would be significantly burdened by retention of multiple case with large number of parties; California has very limited connection to aircraft accident which occurred in Saudi Arabia and involved a Saudi plane on intra-Saudi flight.
Ahmed v. Boeing Co., 720 F.2d 224 (1st Cir. 1983). Factors in favor of trial held in Saudi Arabia or Pakistan rather than in Massachusetts:
• Easier access to witnesses and evidence.
• Accident occurred in Saudi Arabia during Pakistani flight from Saudi Arabia to Pakistan.
• Victims were Pakistani.
• Foreign law probably would apply.
Jeha v. Arabian Am. Oil Co., 751 F. Supp. 122 (S.D. Tex. 1990). Factors favoring Saudi Arabia or Lebanon over Texas:
• Medical malpractice claim arose out of treatment rendered in Saudi Arabia; all evidence and key witnesses are in either Saudi Arabia or Lebanon.
• Only connection to Texas was principal office of defendant's subsidiary (a nonparty).
• Plaintiffs offered no evidence that Saudi Arabia would not be an adequate forum.
• Substantive law of Saudi Arabia governs.
Shields v. Mi Ryung Constr. Co., 508 F. Supp. 891 (S.D.N Y 1981). The court rejected the plaintiff's argument that Saudi Arabia was not an adequate alternative forum, finding that the reasons plaintiff gave (e.g., difficulty obtaining visa and retaining Saudi counsel, religious discrimination) were unsupported by his expert and controverted by defendant's expert. See id. at 896 ("This Court cannot accept plaintiff's attempt to cast aspersions upon an entire legal system without some supporting evidence. Plaintiff provides none, and defendant's expert denies all such allegations.") Factors favoring trial in Saudi Arabia rather than New York included:
• All events constituting breach of contract claim occurred in Saudi Arabia.
• All witnesses and interested parties other than plaintiff were located in Saudi Arbia.
• All relevant documents located in Saudi Arabia.
• Defendants' operations in New York had "absolutely nothing to do with the events at issue."
IV. Cases where court denied motion to dismiss on forum non conveniens grounds when alternative forum was Saudi Arabia.
American Rice, Inc. v. Arkansas Rice Growers Coop. Ass'n, 701 F.2d 408 (5th Cir. 1983). Trademark case: plaintiff and defendant were U.S. farmers' marketing cooperatives, sold rice in Saudi Arabia. The court did not discuss whether or not it considered Saudi Arabia to be an adequate alternative forum. Factors favoring Saudi Arabia as the proper forum included:• Most of the evidence and witnesses were in Saudi Arabia.
• Compulsory process was not available to defendant.
• Saudi Arabia has stronger interest in investigating and preventing alleged confusion in Saudi marketplace than does the U.S.
Those considerations were outweighed by the following:
• U.S. law rather than foreign law applied.
• U.S. plaintiff and defendant.
• Acts occurred both in U.S. and Saudi Arabia.
(ITT Sheraton Corporation asserts in its motion to dismiss that it will cause its subsidiary, Sheraton Middle East Management Corporation, to commit to submit to the jurisdiction of Saudi Arabian courts. SMEMC operates the hotel and has all of the documents related to the accident. ITT Sheraton's ability to exercise such control indicate control over the hotel employees?)
(Defendants say investigator's testimony would not be admissible b/c hearsay. What about testifying as to first-hand knowledge?)