October 29, 2015
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.
Flaum, Manion, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
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.
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
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").
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.
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. 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).
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.
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.
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
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. 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.
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.
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.
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, ...