Kisano Trade & Invest Limited v. Dev Lemster
737 F.3d 869
| 3rd Cir. | 2013Background
- Kisano and Trasteco, Israeli/Maltese/Cypriot owners, sued Lemster and Steel Equipment in the Western District of Pennsylvania for RICO and related fraud claims.
- An amended complaint added Shulman (the Israeli plaintiff) and Sapir and related entities as defendants and expanded fraud claims.
- The District Court and Magistrate Judge recommended forum non conveniens dismissal in favor of Israel, with understanding that case could be refiled there and some statute defenses waived.
- The court adopted the R&R, proceeding to a dismissal based on forum non conveniens without addressing failure-to-state-claim at that stage.
- On appeal, plaintiffs challenge the district court’s deference to their forum choice and the weighing of private/public factors, including convenience and oppressiveness.
- The Third Circuit affirmed the district court, holding Israel is an adequate forum and that the district court reasonably weighed factors, affording lesser deference to the foreign plaintiffs’ forum choice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion on forum non conveniens. | Shulman/Kisano argue lesser deference and convenience favored the US forum. | Lemster/Sapir contend private/public factors favor dismissal to Israel. | No; district court did not abuse discretion; dismissal affirmed. |
| Whether equal access treaty with Israel requires deference level like domestic plaintiffs. | Treaty equal access should grant domestic-level deference to forum choice. | Treaty does not alter deference; convenience governs. | No; equal access does not change deference level; foreign-plaintiff choice receives less deference. |
| Whether the private-interest factors supported dismissal. | US connections and witnesses favored maintaining forum in Pennsylvania. | Most witnesses/evidence and negotiation occurred abroad; Israel is more convenient. | Yes; private factors favored Israel and supported dismissal. |
| Whether the public-interest factors weighed in favor of dismissal. | District of PA is burdened; Pennsylvania law would apply; substantial resources expended. | Less significant US-interest and conduct centered abroad; foreign forum appropriate. | Yes; public factors supported dismissal. |
Key Cases Cited
- Lony I v. E.I. Du Pont de Nemours & Co., 886 F.2d 628 (3d Cir. 1989) (abuse of discretion standard for forum non conveniens; deference to forum choice)
- Piper Aircraft Co. v. Reyno, 454 U.S. 235 (U.S. 1981) (home forum convenience; reduced deference for foreign plaintiffs)
- Windt v. Qwest Communications Int’l, Inc., 529 F.3d 183 (3d Cir. 2008) (four-factor framework; deference analysis for forum non conveniens)
- Koster v. (Amer.) Lumbermens Mut. Cas. Co., 330 U.S. 518 (U.S. 1947) (oppressiveness/vexation standard in forum non conveniens)
- Lacey v. Cessna Aircraft Co., 862 F.2d 38 (3d Cir. 1988) (abuse of discretion in balancing private/public factors)
- Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64 (2d Cir. 2003) (foreign plaintiffs entitled to lesser deference; focus on convenience)
- Blanco v. Banco Industrial de Venezuela, S.A., 997 F.2d 974 (2d Cir. 1993) (equal access treaties; impact on deference discussed (dicta))
- Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146 (2d Cir. 2005) (forum-shopping concerns; motives under forum non conveniens)
- Delta Air Lines, Inc. v. Chimet, S.p.A., 619 F.3d 288 (3d Cir. 2010) (private/public factor balancing; evidence-based inquiry)
- Iragorri v. United Techs. Corp., 274 F.3d 65 (2d Cir. 2001) (convenience-based weighting in forum non conveniens)