Gillian B. LOYA, as Personal representative of the Estate of Ricardo D. Loya, deceased and as Litigation Guardian Ad Litem for I.L. and G.L., the surviving minor children of the decedant, Ricardo D. Loya; Estate of Richard D. Loya, Plaintiffs-Appellants, v. STARWOOD HOTELS & RESORTS WORLDWIDE, INC., doing business as Westin Hotel Company, doing business as Westin Regina Golf Beach Resort and Club Regina Westin Hotel Company doing business as Westin Regina Golf and Spa Resort; Corporation Mexiture Sa De CV, doing business as Xplora Adventours Los Cabos; Padi Worldwide; Padi Americas; John Does; Raintree Resorts International Inc, doing business as Club Regina Westin Hotel Management LP; Whiski Jack Resorts and Club consent to Service; Resort Condominiums International LLC; Douglas Bech; Raintree Vacation Club; Walker Harmon, Defendants-Appellees.
No. 07-35571.
United States Court of Appeals, Ninth Circuit.
Oct. 2, 2009.
583 F.3d 656
Argued and Submitted Oct. 21, 2008. Submission Vacated Oct. 30, 2008. Resubmitted Aug. 21, 2009.
Stephen L. Hewitt and Kevin C. Almeter, Hewitt & Truszkowski, North Hollywood (Los Angeles), CA, for defendants-appellees PADI Worldwide and PADI Americas.
Before DIARMUID F. O‘SCANNLAIN, PAMELA ANN RYMER, and ANDREW J. KLEINFELD, Circuit Judges.
RYMER, Circuit Judge:
This appeal involves applicability of the doctrine of forum non conveniens to claims arising out of the death of a Washington resident while scuba diving off the coast of Mexico on an expedition arranged by the resort at which he was staying in Cabo San Lucas. In particular, it poses the question whether a claim implicating the Death on the High Seas Act (DOHSA),
I
Gillian Loya‘s husband, Ricardo, died in a scuba diving accident off the Mexican coast where he was vacationing at the Westin Resort & Spa Los Cabos (a Starwood Hotel and Resorts Worldwide hotel1) in San Jose del Cabo, Baja California Sur. The Loyas went to Cabo with friends who exchanged a timeshare they had at Whistler for one at Club Regina Los Cabos, the timeshare portion of the Westin resort that is owned by Raintree Resorts International. The scuba diving trip was arranged through Xplora Adventours Los Cabos, which worked in Cabo with the Westin. Allegedly, the guide was underage by PADI standards (PADI certifies dive centers), abandoned Ricardo, and failed to rescue him. Loya, a Washington resident, filed an action against these entities and others in Washington state court for dereliction of duty that resulted in her husband‘s wrongful death. The complaint also asserted claims under the Washington Consumer Protection Act (WCPA) and the Washington Timeshare Act (WTA) for falsely advertising that the Westin Resort provided safe scuba diving activities. Starwood removed on the basis of diversity and admiralty jurisdiction. Loya then amended the complaint to charge Raintree with violating the WTA and WCPA by failing to consent to personal jurisdiction in Washington.
When Loya sought partial summary judgment on her state law claims, Starwood cross-moved for dismissal on the ground of forum non conveniens. The district court denied Loya‘s motion but granted Starwood‘s. In doing so, the court rejected Loya‘s argument that the doctrine of forum non conveniens is inapplicable because DOHSA provides the exclusive remedy for American beneficiaries and mandates venue in a United States district court. Instead, relying on Pain, the court held that DOHSA actions are within the admiralty jurisdiction of the federal courts and, whether or not DOHSA applies to this action, the Act does not preclude forum non conveniens dismissal. The court then ruled that an adequate alternative forum was available. After considering private and public interest factors, it concluded that dismissal was appropriate for the main reasons that Baja California Sur, Mexico is a more convenient forum, and the nucleus of Loya‘s case is the place where the accident occurred.
Loya timely appeals.2
II
At its core, Loya‘s position is that DOHSA effectively precludes dismissal on grounds of forum non conveniens. As she recognizes, nothing in DOHSA says so, but she maintains that Congress did not intend for the forum non conveniens doctrine to eliminate access by an American beneficiary to a remedy under DOHSA for the wrongful death of an American on the high seas.
DOHSA was enacted in 1920 to overrule the Supreme Court‘s decision in
Loya argues that the district court‘s foundational error was following Pain, which erroneously led it to conclude at the outset that dismissal was an option, instead of applying a choice of law analysis under Zipfel v. Halliburton Co., 832 F.2d 1477 (9th Cir. 1987), as modified, 861 F.2d 565 (9th Cir. 1988), to determine whether DOHSA implicitly speaks to and rejects the application of forum non conveniens.
In Pain, an American citizen who lived in Norway was killed, along with others, in a helicopter crash into the North Sea, and decedents’ survivors brought suit against the American manufacturer. They argued that their DOHSA claim arose under the laws of the United States within the meaning of the district court‘s federal question jurisdiction and that the court‘s jurisdiction was thus mandatory. The court of appeals held otherwise, noting that DOHSA provides only that a suit may be maintained “in the district courts of the United States, in admiralty.” Pain, 637 F.2d at 781 (quoting
Zipfel does not lead to a different result. The district court there had dismissed on grounds of forum non conve-
Loya suggests that using the doctrine of forum non conveniens to dismiss her claim undercuts the exclusive DOHSA remedy that Congress intended to provide in a United States district court, thus contravening the Supreme Court‘s enjoinder in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 624-25, 98 S. Ct. 2010, 56 L. Ed. 2d 581 (1978), that
Loya further posits that because Congress enacted DOHSA to provide “a uniform and effective wrongful death remedy for survivors of persons killed on the high seas,” Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 214, 106 S. Ct. 2485, 91 L. Ed. 2d 174 (1986), the district court may not, through use of forum non conveniens, abrogate the rights of United States beneficiaries to the “fair and just compensation for the pecuniary loss” that Congress intended to provide.7 However, just as the forum non conveniens doctrine does not expand the substantive law on wrongful death, the doctrine does not contract it, either. Application of the doctrine simply shifts the forum where the claim will be decided.
Loya relies on Howard v. Crystal Cruises, 41 F.3d 527 (9th Cir. 1994), where we upheld the district court‘s determination that DOHSA governed the wrongful death claim of an American who was injured while disembarking a cruise ship of Bahamian registry operated by a California corporation in Mexico. However, Howard does not support Loya‘s position; it did not involve the doctrine of forum non conveniens. The question there was whether DOHSA, as opposed to general maritime law, could apply to death in the territorial waters of another country. We concluded that it could, and in that context opined that “there is nothing inherently absurd with the notion of an American court applying American law to an action filed by an American plaintiff against an American defendant, particularly when the law in question was expressly designed to cover wrongful deaths occurring outside the territorial boundaries of the United States.” Id. at 529-30. This does not mean that the doctrine of forum non conveniens is unavailable if DOHSA applies.
Accordingly, we hold that DOHSA neither explicitly, nor implicitly, rejects application of the doctrine of forum non conveniens.
III
Given our conclusion that the district court could dismiss on grounds of forum non conveniens, the remaining question is whether it clearly abused its
“A party moving to dismiss on grounds of forum non conveniens must show two things: (1) the existence of an adequate alternative forum, and (2) that the balance of private and public interest factors favors dismissal. This showing must overcome the ‘great deference 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.‘” Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 767 (9th Cir. 1991) (quoting Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1449 (9th Cir. 1990)). Private interest factors include “(1) relative ease of access to sources of proof; (2) the availability of compulsory process for attendance of hostile witnesses, and cost of obtaining attendance of willing witnesses; (3) possibility of viewing subject premises; (4) all other factors that render trial of the case expeditious and inexpensive.” Creative Tech., 61 F.3d at 703 (quoting Zipfel, 832 F.2d at 1485). Public interest factors include “(1) administrative difficulties flowing from court congestion; (2) imposition of jury duty on the people of a community that has no relation to the litigation; (3) local interest in having localized controversies decided at home; (4) the interest in having a diversity case tried in a forum familiar with the law that governs the action; (5) the avoidance of unnecessary problems in conflicts of law.” Id. at 703-04.
The district court found that Baja California Sur, Mexico provides an adequate forum because all defendants agreed to accept service, submit to the jurisdiction, and waive any statute of limitations defenses; Loya could bring a tort-based suit there; and Mexican courts would afford some remedy, even though less than available in this country. (Loya‘s expert, a Mexican lawyer experienced in advising foreign litigants about the Mexican legal system, declared that any wrongful death recovery would be capped, in accordance with a formula driven by the highest daily minimum wage in the region, at $12,000-13,000, with little likelihood for recovery of moral damages or at least none in excess of $4,000. He also indicated that Mexican attorneys do not work on a contingency basis and his firm would charge about $50,000 to litigate this case.)
Addressing the private interest factors, the court found that the relative ease of access to sources of proof and obtaining witnesses favor Starwood, as does the fact that a Mexican judgment would be enforceable in the United States. It noted that, although Loya has sued American defendants rather than the Mexican subsidiaries of Starwood and Raintree, Ricardo Loya‘s death and the activities leading up to the accident occurred in Mexico and that, other than Gillian Loya (who was not on the dive), Ricardo Loya‘s diving partner (who lives in California and will not willingly go to Cabo), and the friends with whom the Loyas went on the trip, potential liability witnesses and relevant docu-
With respect to public interest factors, the court found that court congestion in Baja California Sur weighs in favor of Loya. While Washington has an interest in preventing misrepresentations to its residents about the safety of a Mexican vacation, the court held that Mexico‘s substantial interest in holding businesses operating in Mexico accountable and insuring that foreign tourists are treated fairly favors Starwood given that the gravamen of Loya‘s complaint is that Starwood, operating in Mexico, caused Ricardo Loya‘s death. In evaluating the public interest in having trial in a forum familiar with the governing law, the court looked to the test Washington applies to determine choice of law (if laws conflict, then the laws of the forum with the “most significant relationship” govern). It concluded that Mexican law may apply to some issues, particularly the applicable standard of care and interpretation of any liability release signed by Ricardo Loya. In the court‘s view, the need to apply foreign law strongly favors dismissal based on forum non conveniens. Finally, the court found no cause to burden Washington jurors with this litigation given that most of the allegedly wrongful conduct took place in Mexico and among non-Washington defendants.
Considering all these factors, the district court found that dismissal was appropriate for two important reasons: Baja California Sur is an adequate alternative forum, and the nucleus of Loya‘s case is where Ricardo Loya‘s accident occurred. On balance, the court believed that the public and private factors weigh in favor of Starwood. Thus, it concluded that Baja California Sur is the more convenient, therefore appropriate, forum.
Loya emphasizes the heightened deference owed to American citizens suing American defendants in their home forum. We afford greater deference to a plaintiff‘s choice of home forum because it is reasonable and convenient. However, the deference due is “far from absolute.” Lockman Found., 930 F.2d at 767 (noting that we have recognized that “[t]he presence of American plaintiffs ... is not in and of itself sufficient to bar a district court from dismissing a case on the ground of forum non conveniens“) (quoting Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir. 1983)). A district court has discretion to decide that a foreign forum is more convenient. See, e.g., Piper Aircraft, 454 U.S. at 257; Lockman Found., 930 F.2d at 767; Contact Lumber, 918 F.2d at 1449. Here, Baja California Sur is where the scuba diving trip was arranged, documented, outfitted, undertaken, and investigated.9 We cannot say that
Loya also focuses on the considerable difference in potential recovery, as well as in the cost of pursuing this action, in Mexico. The remedy afforded may not be “so clearly inadequate or unsatisfactory that it is no remedy at all.” Lockman Found., 930 F.2d at 768. However, that the law, or the remedy afforded, is less favorable in the foreign forum is not determinative. Piper Aircraft, 454 U.S. at 247 (stating that “[t]he possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry.“). A foreign forum must only provide the plaintiff with “some” remedy in order for the alternative forum to be adequate. Lueck, 236 F.3d at 1143-44 (rejecting the plaintiffs’ argument that New Zealand offered no remedy for their losses because it has legislated tort law out of existence, and noting that the district court was not required to ask whether plaintiffs could bring this lawsuit there but rather, whether New Zealand offered “a” remedy). Unquestionably, Mexico provides a remedy for breach of contract and for wrongful death. Having taken all of these considerations into account, the district court‘s conclusion that Baja California Sur was nevertheless a more convenient forum is not unreasonable. See Piper Aircraft, 454 U.S. at 249 (observing that convenience is the central focus of the forum non conveniens inquiry, and rejecting the notion that the possibility of an unfavorable change in law should be given substantial weight so as to bar dismissal even where trial in the chosen forum is plainly inconvenient).
Further, Loya contends that the choice of law issues should have been resolved by application of the Lauritzen factors rather than by Washington choice of law rules. This is not, however, an argument that she made in the district court. As the judge observed, Loya did not contradict Starwood‘s choice of law analysis. Loya‘s only response to Starwood‘s submission that Mexican substantive law would apply was that the district court was familiar with DOHSA and with the laws of Washington that would apply when construing the Timeshare Act and the Consumer Protection Act. Therefore, the argument that she now makes is waived. Even so, Loya does not explain why or how the Lauritzen factors would require a different outcome. In these circumstances, we decline to upset the district court‘s view that Mexican law may apply to the applicable standard of care and interpretation of any liability release signed by Ricardo Loya.10
Finally, Loya submits that the district court offered no explanation why enforce-
In sum, the trial court considered all the relevant factors and balanced the interests reasonably. Given this, we owe its decision substantial deference.
IV
We conclude that the Death on the High Seas Act, unlike the Jones Act, does not preclude dismissal on the basis of forum non conveniens. The district court found that Baja California Sur is an adequate alternative forum, reasonably balanced the public and private interest factors that inform a forum non conveniens determination, and concluded that Baja California Sur is a more convenient, thus appropriate, forum. Accordingly, it dismissed this action on grounds of forum non conveniens. In doing so, it did not clearly abuse its discretion.
AFFIRMED.
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent. The district court treated forum non conveniens as less than the “exceptional tool to be employed sparingly”1 that it is, and applied it overly aggressively. The district court, as we agree, erred as a matter of law by failing to apply the Lauritzen2 factors to choice of law. While the plaintiff has not made clear how application of the correct factors would change the result, and should have, the error of law in failing to apply the Lauritzen factors affected an
Though the death giving rise to this case occurred in Mexico‘s waters, the American connections with the case are very substantial indeed. Loya was American, as are his wife—who is personal representative of his estate—and his children. Loya died, as we understand the facts, while scuba diving at the Westin resort in Cabo San Lucas, a death that might have been prevented had the resort used someone competent and properly certified to manage his oxygen tank, and had the potential rescue vessel not passed by without performing a rescue. The Loyas’ lawsuit focuses on the American timeshare and resort companies that they claim ought to have assured higher safety standards to Americans vacationing in their resort in Mexico.
By contrast, in Piper Aircraft Co. v. Reyno3, the Supreme Court decision laying out the forum non conveniens law we must apply, a U.K. air taxi crashed a U.K.-owned plane in the Scottish highlands, killing the pilot and passengers, all of whom, along with their heirs and next of kin, were Scottish. And in Lauritzen v. Larsen4, every substantial connection to the case except for the Cuban location of the injury was Danish, as the Court took pains to lay out:
Larsen, a Danish seaman, while temporarily in New York joined the crew of the Randa, a ship of Danish flag and registry, owned by petitioner, a Danish citizen. Larsen signed ship‘s articles, written in Danish, providing that the rights of crew members would be gov-
erned by Danish law and by the employer‘s contract with the Danish Seamen‘s Union, of which Larsen was a member. He was negligently injured aboard the Randa in the course of employment, while in Havana harbor.5
I agree with the majority that the Death on the High Seas Act controls, and that the doctrine of forum non conveniens applies to Death on the High Seas Act claims. And I agree that under Howard v. Crystal Cruises6 we are bound to apply the Death on the High Seas Act even though Loya‘s death was not on what are commonly understood to be the “high seas.” The failure of a passing vessel to rescue Loya falls within the category of traditional maritime activity under Taghadomi v. United States7.
Where we disagree is in the application of the doctrine of forum non conveniens. I have not found precedent for so aggressive an exclusion of an American plaintiff from American courts under the doctrine in any other case, and I think it is mistaken here.
The Supreme Court decision in Piper Aircraft Co. v. Reyno8 gives us the necessary guidance. That Scottish air crash, described above, was properly dismissed for forum non conveniens, and the Court rejected the Third Circuit view that more favorable law, alone, in the plaintiff‘s choice of forum was sufficient reason to deny forum non conveniens dismissal. The decision reaffirmed, though, that the “plaintiff‘s choice of forum should rarely be disturbed.”9 The rule in Piper is that forum non conveniens dismissal is appropriate only “when trial in the chosen forum would ‘establish ... oppressiveness and vexation to a defendant ... out of all proportion to plaintiff‘s convenience,’ or when the ‘chosen forum[is] inappropriate because of considerations affecting the court‘s own administrative and legal problems.‘”10 That stringent rule has not been applied in this case. Piper read the Court‘s earlier decision in Gulf Oil Corp. v. Gilbert11 to mean that “dismissal may be warranted where a plaintiff chooses a particular forum, not because it is convenient, but solely in order to harass the defendant or take advantage of favorable law.”12
Piper carefully qualified its rule that law more favorable to the plaintiff is not a good ground automatically to deny forum non conveniens dismissal. “[I]f the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice.”13 That is the case here. The Loya family has no practical Mexican remedy. The papers set out that their remedy in Mexico would be limited to damages of about $17,000, and that they would be required to spend over $50,000 to secure that remedy.
In addition to the impracticality of any remedy in Mexico, the Loyas face an insuperable obstacle in proving their case there. The decedent‘s diving partner is
Our disagreement is limited to application of law to facts, but that matters. Piper holds that there is no “rigid rule” governing discretion, just a multi-factor set of considerations, and “each case turns on its facts.”14 The Loyas ought to be able to sue in Washington—their and the decedent‘s home—from where they arranged their Mexican vacation with an American company and the Mexican companies it partnered with.
KOZINSKI, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit. Judge Pregerson did not participate in the deliberations or vote in this case.