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Deb v. Sirva, Inc.

United States Court of Appeals, Seventh Circuit

August 11, 2016

Ashoke Deb, Plaintiff-Appellant,
Sirva, Inc., et al., Defendants-Appellees.

          Argued October 29, 2015

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:13-cv-01245-TWP-DML Tanya Walton Pratt, Judge.

          Before Flaum, Manion, and ROVNER, Circuit Judges.

          ROVNER, Circuit Judge.

         Ashoke Deb contracted with an Indian moving company, Allied Lemuir, to move his belongings from Calcutta, India to St. John's, Canada, but his belongings never left India. He now seeks to hold the defendants, two United States companies, SIRVA, Inc. and Allied Van Lines, Inc., responsible for the improper disposal and loss of his personal property in connection with his move. SIRVA and Allied moved to dismiss the complaint, arguing that Deb had failed to state a claim for which the court could grant relief, that he had failed to join a necessary party, and that the United States federal courts were not the proper venue for his claim. The district court agreed with the latter argument and dismissed on the grounds of forum non conveniens. Deb appeals. Because we have determined that the district court did not hold the defendants to their burden of demonstrating that India was an available and adequate forum for this litigation, we vacate and remand the case to the district court to do so.


         Because the defendants, SIRVA and Allied Van Lines, moved to dismiss, we will construe the facts in the plaintiff's favor for now, but will discuss the nuances of our assumptions below. Jackson v. Payday Fin., LLC, 764 F.3d 765, 773, n.19 (7th Cir. 2014), cert, denied, 135 S.Ct. 1894 (2015).

         In August, 2009, in preparation for his move from Calcutta, India to his current home in St. John's in the Province of Newfoundland and Labradour, Canada, Deb, a citizen and resident of Canada, contracted with an Indian company, Allied Lemuir, to move his personal belongings from Calcutta to St. John's. Deb's belongings, however, never left India. On September 5, 2009, Allied Lemuir e-mailed Deb and informed him that sea freight charges had risen substantially, and consequently, Deb would need to pay an additional amount of money to have the items shipped. Deb refused to pay the additional amount and demanded that Allied Lemuir fulfill its obligations under the contract as written. At the same time that Deb was attempting to settle matters with Allied Lemuir in India, he also contacted the defendants, the United States companies of SIRVA and Allied Van Lines, in an effort to obtain his personal goods. Furthermore, from December 2010 until May 2011, Deb's Canadian counsel attempted to resolve the issue with an attorney for Allied Van Lines Canada ("Allied Canada").

         Allied Lemuir sent Deb a letter dated January 30, 2010, demanding additional charges that had accrued for demurrage, fumigation, renewal of customs clearance, and sea freight. The letter stated that if Deb failed to remit payment within seven days, it would assume he was no longer interested in the shipment. Deb did not respond to the letter directly, but rather relied on his Canadian lawyer to pursue a resolution by other means, including by contacting the defendants in this case and corresponding with them over the course of several months. On August 11, 2010, SIRVA's claim services department responded to Deb's inquiries, stating that they were unable to identify any record of Deb's shipment in SIRVA's system, but stated that if the move was through Allied or North American, the claims service representative would forward the message to the proper party if Deb provided a registration number. According to a letter dated August 26, 2010, which Deb says he did not receive until it was sent to his counsel on April 12, 2013, Allied Lemuir eventually sold Deb's property to pay the additional amounts it had demanded from Deb.

         Deb filed a legal action against Allied Canada in the Supreme Court of Newfoundland and Labrador, Canada, in the Trial Division on November 5, 2010. And, a few years later, on July 12, 2013, while the Canadian case was still pending, he filed his complaint in this case in the Indiana State Superior Court against SIRVA and Allied Van Lines, both of which are Delaware corporations with their principal place of business in Illinois and corporate offices in Indiana.[1] On August 5, 2013, the defendants jointly filed a successful notice of removal in the district court in the southern district of Indiana. Deb seeks to hold SIRVA and Allied Van Lines responsible for the damages from the improper disposal and ultimate loss of his personal property, which he alleges include original works of intellectual property that, together with his other personal belongings, exceed a value of $75, 000. His amended complaint alleges that SIRVA and Allied Van Lines are liable to Deb as "joint venturers." (R. 27, pp. 3-4, Page ID 286-287) (Plaintiff's Supp. App. B003-B004).

         The district court granted the defendants' motion to dismiss on June 6, 2014, based on the ground of forum non conveniens, noting that both India and Canada offered appropriate alternative forums for the action. Deb appeals.



         The defendants filed their motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (failure to state a claim upon which relief can be granted), 12(b)(7) (failure to join a party), and 12(b)(3) (improper venue). Subsumed within this last category were the common law principles of forum non conveniens and abstention. The district court dismissed the case on the ground of forum non conveniens.

         As the Latin name suggests, the doctrine of forum non conveniens addresses the matter of convenience to the parties. As the Supreme Court explained,

A federal court has discretion to dismiss a case on the ground of forum non conveniens when an alternative forum has jurisdiction to hear the case, and trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to plaintiff's convenience, or the chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems.

Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 429 (2007) (citing a long line of Supreme Court precedent) (internal citations omitted). Today, the doctrine applies in the federal courts only when the other jurisdiction is a foreign one.[2] Stated more simply, a district court may dismiss a case on forum non conveniens grounds when it determines that there are "strong reasons for believing it should be litigated in the courts of another, normally a foreign, jurisdiction." Fischer v. Magyar Allamvasutak Zrt., 777 F.3d 847, 866, cert, denied, 135 S.Ct. 2817 (2015) (citing Sinochem, 549 U.S. at 429-30). A dismissal for forum non conveniens is "committed to the sound discretion of the trial court" and "may be reversed only when there has been a clear abuse of discretion." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981); Abad v. Bayer Corp., 563 F.3d 663, 665 (7th Cir. 2009).

         The doctrine of forum non conveniens, however, is an exceptional one that a court must use sparingly. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504, 509 (the doctrine should be applied only in "exceptional circumstances, " and "rather rare cases.") See also Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011) ("The doctrine of forum non conveniens is a drastic exercise of the court's inherent power .... Therefore, we have treated forum non conveniens as an exceptional tool to be employed sparingly.") "[U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Gulf Oil, 330 U.S. at 504.

         The exceptional nature of a dismissal for forum non conveniens means that a defendant invoking it ordinarily bears a heavy burden in opposing the plaintiff's chosen forum. Sino-chem, 549 U.S. at 430; Gulf Oil, 330 U.S. at 508; In re Hudson, 710 F.3d 716, 718 (7th Cir. 2013); In re Factor VIII or IX Concentrate Blood Products Litigation, 484 F.3d 951, 956 (7th Cir. 2007). A heavy burden is appropriate, because if the doctrine is successfully invoked, the result is not a transfer to another court but a dismissal, and the plaintiff will not be able to refile his case in any other court if the statute of limitations has run. In re Hudson, 710 F.3d at 718.

         When a plaintiff's choice is not his home forum, however, the presumption in the plaintiff's favor "applies with less force, " for the assumption that the chosen forum is appropriate is in such cases "less reasonable." Sinochem, 549 U.S. at 430 (citing Piper Aircraft, 454 U.S. at 255-56). In U.S.O. Corp. v. Mizuho Holding Co., 547 F.3d 749, 752 (7th Cir. 2008), we noted that "[I]f the plaintiff is suing far from home, it is less reasonable to assume that the forum is a convenient one. ... [and T]he risk that the chosen forum really has little connection to the litigation is greater.") (citing In re Factor VIII or IX Concentrate Blood Products Litigation, 484 F.3d at 956.) It is true that Deb lives in Newfoundland, Canada and not the United States, but although the citizenship of the plaintiff defending against a forum non conveniens claim is relevant to the issue of convenience, it is not dispositive of the issue. See, e.g., Scottish Air Int'l, Inc. v. British Caledonian Grp., PLC, 81 F.3d 1224, 1232 (2d Cir. 1996). As we noted in the blood products litigation, the issue is not so much about the foreign citizenship of the plaintiff, but rather what that foreign nationality might indicate about the convenience to the plaintiff. In re Factor VIII or IX Concentrate Blood Products Litig., 484 F.3d at 956. In other words, when a plaintiff is suing far from home

the risk that the chosen forum really has little connection to the litigation is greater. We do not understand this as any kind of bias against foreign plaintiffs. That would be inconsistent with many treaties the United States has signed as well as with the general principle that our courts are open to all who seek legitimately to use them. It is instead a practical observation about convenience. A citizen of Texas who decided to sue in the federal court in Alaska might face an equally skeptical court, which might conclude that convenience requires a change in venue under the federal statutory counterpart to forum non conveniens.

Id. at 956. Nonetheless, it is undoubtedly true that although Deb is not a citizen or resident of the United States, litigation in Indiana would be far more convenient from a geographical perspective than one in India. And in any case, even if we apply the presumption in favor of Deb with less force, ...

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