Manu International, S.A. v. Avon Products, Inc.
641 F.2d 62
2d Cir.
1981
Check Treatment

*1 limited preference extremely fit from the pool total comparison anticipated provision eligible applicants. While pass

als who the new examination rank

not be selected on the basis of their examination,

order in passing that on-the-job training them with is not

experience provisionals pos as great majority appli

sessed

cants. grant preference of a is consist

ent legislative with New York action State promoting provisionals in several Judicial

Departments positions permanent preference applies equal

UCOs. The

force to minority provisionals, and white

excluding none because of race. The order

of the district court to be within appears

general equity power. our decision is Since

limited to the unique and unusual circum

stances of this it does not undermine philosophy merit-oriented of the New system.

York Civil Service See Kirkland v. Dept. State of Correctional Serv

ices, 1975). 520 F.2d 420 INTERNATIONAL, S.A.,

MANU

Plaintiff-Appellant, PRODUCTS, INC.,

AVON

Defendant-Appellee.

No. Docket 80-7575.

United States Court of Appeals,

Second Circuit. Nov.

Submitted 1980.

Decided Jan. 1981.

brought suit in District for Court against of New York District Southern Products, New (“Avon”), a York Avon Inc. in corporation principal with its offices New York, seeking damages for fraud in a middle- obtaining disclosure man, handbags its Taiwanese of source supplied to Avon and then Manu by-passing May On directly to deal with the source. 28, 1980, court, Leonard B. Sand, J., granted Avon’s renewed motion to of forum non grounds dismiss the action on consent conveniens on condition that Avon appeals Taiwan. Manu in ground this dismissal. We reverse on exceeded the limits of that the district court its in the matter. discretion into a Manu

Beginning entered relationship with Avon Overseas business wholly- (“AOL”), a London-based Limited responsi- subsidiary of Avon which owned handling markets. European ble for Avon’s called supplied product Manu Avon with a Showcase,” quality a fab- “Beauty high handbag ric had manufactured which Manu that it for in Taiwan. Manu claims AOL alleges Avon designed bag. employee. AOL In bag designed by for event, any bags manufactured Taiwan, independent by producers Manu using “confidential what Manu claims were produc- systems, techniques and methods developed on over 30 tion” based know-how exclusive to Manu’s years and disclosed individual Lawrence Chu. named Freeman, Meade, Wasserman & Schneid- and Avon relationship The between Manu er, Freeman, City (Melvyn Law- July a turn for the worse. soon took Fogelson, rence York of coun- City, S. New Buying its East Avon established Far sel), for plaintiff-appellant. (“FEBO”) Arlington Office division corpora- (“Arlington”), a Bermuda Limited Breed, York Morgan, City Abbott New & subsidiary wholly-owned is also tion which Vasios, (Stephen Barry Lang, R. H. was to purpose of the FEBO Avon. counsel), York for City, defendant-appel- or being products handle all made lee. Far Avon might be made in the East LUMBARD, Before MANSFIELD the world. One ob- throughout subsidiaries GRAAFEILAND, Judges. VAN Circuit consequence vious establishment Far buying Avon of its own office MANSFIELD, Judge: Circuit like European middlemen East was Shortly 18, 1979, International, after important. On Manu became less July FEBO and location (“Manu”), Belgian corporation, S.A. the formation Kong, H. Dams of AOL in tices but instead from use Hong C. Avon’s of fraud advising London wrote Manu it that no by-pass it. items manufactured in the Far East would complaint purports allege four be purchased importers agents separate claims. The first is that Avon Europe and that if Manu wished to main- contract said tortiously interfered with a tain its business connection with *3 exist between covering Chu and Manu manufacturing Manu’s locations their Chu’s services. The second is that Avon agencies sales in the Far East would have fraudulently identity, obtained Chu’s which FEBO, to contact the manager of the an allowed it to appropriate his services and individual named John Kitchener. sources. The third is that the sources 1977, During the summer of Nicholas Beauty methods of manufacture of the Bova, based in New an Avon Vice President Showcase were confidential trade secrets York, visited Taiwan and while there met misappropriated by Avon. The Chu, with “manager.” Manu’s Taiwan La- alleges foregoing fourth claim that the acts ter Chu and Kitchener communicated with were the product conspiracy among of a each other and Avon concedes that Chu is Arlington. granting AOL and currently agent an in Taiwan for one of Avon’s motion to dismiss on grounds foreign parties Avon’s subsidiaries. The Judge conclud- Sand disagree over the circumstances surround- ed that Taiwan is the of the point” “focal Chu, meeting Bova’s the latter’s litigation, the issues must be decided subsequent contact with and the law, according to Taiwanese and that there explanation for Chu’s shift from Manu to having is “little ‘local interest’ in this con- Avon. Avon contends that in the forum,” e., troversy decided before this i. hope of maintaining some influence with the Southern District of New York. FEBO,

the new asked for the meeting be- tween Bova and Chu. Manu claims after resisting some Avon efforts to dis- DISCUSSION cover identity Manu’s Whether an action be dismissed it finally consented to disclose for forum non conveniens when that information in response represen- to a is properly otherwise invoked governed is tation by Dams that an Avon vice president by the factors Corp. outlined in Gulf Oil (who Bova) turned out to be was to be in Gilbert, 501, 508-09, 839, 330 67 U.S. S.Ct. inspect oper- and wanted to Manu’s (1947). 91 L.Ed. 1055 As we have often ation there to determine if it the capac- had Circuit, noted in this these factors break

ity to handle production of the Beauty down into those relating “private Showcase for American markets. interests” involved “public and to the inter representation, claims, fraudulent Manu est,” which must also be cover-up considered. Alcoa for Bova’s real purpose, Steamship Regent, was to find out the sources of Co. v. Manu’s M/V Nordic production in Taiwan 864, (2d and lure them F.2d 1980) (en banc) into 860 at direct dealing with the FEBO. (“Alcoa III”), denied,-U.S.-, cert (1980). 101 S.Ct. 66 L.Ed.2d 116 Amid all the controversy certain facts private “practical interests concern the seem to be established. who is based problems easy, that make trial of case in New did meet with Chu in Taiwan. expeditious inexpensive” (ease of access Together visited manufacturing proof, process, availability compulsory sources able to produce Beauty Show- obtaining willing cost of witnesses’ attend- one of which may have been the actual ance), the en- production obtaining likelihood of source. is now work- ing for Kitchener judgment and the FEBO. forceable and the “relative ad- AOL no longer purchases any products vantages from Manu. and obstacles to a fair trial.” 330 According Manu, this state of affairs has U.S. at at 843. The S.Ct. legitimate resulted from prac- business prob- interest factors involved include duty, local “There is tempta- understandable congestion, jury lems controversy and advan- busy tion in a district like the Southern interest with the tages having a court familiar cases District of York transfer 508-09, Id. being applied. appropriately slightly law which can as or even properly district court at 843. If a more be tried elsewhere. appropriately factors, its non con- analyzes these temptation That resisted. unless will not be reversed veniens dismissal choice of forum normal- plaintiff’s should discretion is found. an abuse of respected. The circumstances ly approach the limits in which case court’s dis the district Emphasis on judge may exercise discretion cretion, however, must not overshadow At 969. transfer to another forum.” doctrine that central of the Gilbert principle favor of balance is “unless the a case Although the “contacts” defendant, choice of fo jurisdiction in is an question have with the *4 Id. at rarely rum should be disturbed.” issue, obligates analysis the proper Gilbert has Additionally, at 843. there only to assess not the number of been much recent sentiment in this Circuit comparative efficacy contacts but also the evaluating one efficiency trying and case in forum speed and light factors in of the increased are rele opposed to another. Contacts ease of travel and communication inquiry vant to the forum non conveniens makes, issue is the especially key when only insofar as relate to the ease and witnesses, “as location of no forum incon trying particular fairness of a case in a Fitzger venient [today] as it was in 1947.” It often easier jurisdiction. will be Texaco, Inc., (2d ald than to “transfer a witness or a document (Oakes, J., dissenting); Cir. see also transfer a lawsuit.” Id. (Mansfield, J., concurring). id. at 454 Judge in Ca Newman’s recent concurrence asked, therefore, question The Belgium, lavo Growers Cal. v. Generali it will so easier and is whether be much 1980), 632 F.2d 963 reflects a con than try fairer case cern He for both these considerations. strongly favors New York that balance states that “controlling principles” thorough After a review of the dismissal.

forum non conveniens are allow persuaded record are even we

“First, forum is to plaintiff’s court, choice of ing wide discretion to the district be unless the of both respected negative. balance question must be answered in the public tifies a transfer. [******] and private interests strongly jus district court’s conclusion acts In the first specifically complained place we do not occurred in “all of the share the “Second, the allegations of whether the Putting assessment Manu’s Taiwan.” aside conspiracy balance of and interests private of a New York-orchestrated support overcomes the choice plaintiff’s (which nonetheless finds some made light record) of the its claim is that it was principal transportation part realities of modern with Chu’s fraudulently induced to attempt A forum is not neces- this was identity. communications. at first sarily inconvenient because of distance but in a letter allegedly made in Taiwan Vercamer, if it is then Avon’s pertinent parties places by or written Robert Purchasing, readily accessible in a few hours of air Director of International 1975, Manu, will less quicker travel. It often be New York on November expensive to transfer a witness or a docu- address of Belgium, asking ment Jet Japan. than transfer a lawsuit. supplier given Manu’s alleged travel and satellite communications have false made representations significantly meaning ‘non to disclose altered Dams of AOL to induce Manu in Taiwan conveniens.’ of its identity London, expensive less were made in not Taiwan. Manu’s some mohammeds to eventual disclosure of the information also proceed way the mountain than to the other had no contact with Taiwan. Manu’s flying around. The cost of alleges a con- complaint fourth claim in its perhaps a few Taiwanese manufactur- in- spiracy companies between the three ers to New York cannot be more possibly (Avon, none of Arlington), volved AOL and greater flying equal than the cost of , Further, which is based in Taiwan. if Taiwan, hiring of individuals to number conspiracy Manu’s claim that was con- keeping Taiwanese counsel to defend and of all, trolled from New York is credited at away men like Dams and Vercamer controversy substance of the itself not York and Lon- positions from their in New touches other locales besides don. This is not a case where the defend- particular has a nexus with New York. by hav- economically prejudiced ant will be chosen fo- plaintiff’s to defend Next, witnesses, the location of the al- rum rather than in another. aways key factor in forum non conveniens cases, does not support the district court’s The location of witnesses view that the case should be tried in Tai- many places chosen forum and of others in wan rather than New York. It is true that nearer to that forum than to the Taiwan, though Chu resides in Manu itself forum, several more convenient is one of may have to call Chu as a witness if it is to factual distinctions this case and between prove its claim. The Taiwanese manufac- III, poten- Alcoa III. of the none turers, importance whose speculative (except conceivably expert tial witnesses *5 most, also reside in Taiwan. All the rest of witness) York, many lived in New while did drama, however, the actors in the do not III, live in at 872. supra, Trinidad. Alcoa reside in Taiwan. also, Traum, v. 589 F.2d See Schertenleib who met 1978) (Geneva the Avon Vice President held to be with Chu in Taiwan and was taken to visit a more convenient forum when “all the witnesses, manufacturers in prospective is based in New apart [defend- York, himself, where he testimony resides. His either are or reside in Swiss ant] Further, countries”). crucial and he was ignored European all but this is not district court. another impor- a situation where the location itself physical tant figure, Cf., does not live in Taiwan as the or a view of it figure could in the case. said, III, in Hong Kong. supra, at 869. Hong Kong is of course closer to Taiwan Thus, is at the location of the witnesses York, than to New but Kitchener is an least as conducive to trial in New York as Avon employee. The only obstacle his Moreover, to trial in Taiwan. are there presence here is economic and Manu could three further factors which demonstrate be made provisionally responsible for this that Avon has not met and cannot meet its Vercamer, burden. though in New York at showing burden of of conve- balance 17, 1975, time he wrote the November First, nience to be in its favor. letter, apparently now lives in London as language appar- there is the issue. Chu is does Dams. London is much closer to New It ently English. able to communicate in York than to Taiwan as of is Belgi- course assumed manu- that the Taiwanese um, the employees residence of all the speak English (though ap- facturers do not testify. who would have to pellant otherwise). claims All of the other

Even considering without the other indi- been men- individuals whose names have viduals in however, New York witnesses, who are possible speak tioned as have been setting up involved in the FEBO English. The documents which have come and in “controlling” dealings Thus, Kitchener’s light English. to date are all (in words, other even if we leave appear problem translation would out the players in Manu’s claimed New much less serious in New York than in York-controlled it will conspiracy), surely be Taiwan. simpler expensive it will be no for

Second, is Avon’s and more because New York New York than Tai- forum, presents what Scher Avon to defend in this case home could be only prejudice un wan. The possible as the “somewhat tenleib characterized over Taiwanese process resident who the that it is the forum absence usual fact Schertenleib, compare manufacturers. This does not supra, 589 seeks dismissal.” prejudice of the with risk of needless the residence Although F.2d at 1164. in other recent forum longer dispositive defendant involved parties is no considered cases, III, See, see, Alcoa non cases in this Circuit. forum non conveniens conveniens 869; Motors, Schertenleib, (ina- supra, at supra, Cray General (1973) (Michigan witnesses, Mich. 207 N.W.2d 393 incarcerat- bility crucial bar rejected Switzerland, of defendant residence ed in to New York live dismissal), it remains produce “very cross-examination significant factor. The court in Scherten handicap” serious to defendant if leib said: Texaco, retained); Fitzgerald v. jurisdiction Inc., (inability to

“We 521 F.2d at 453 begin by noting plaintiff supra, chose involved is implead parties directly this resides here. other forum defendant defend- weighs against part prejudice dismissal. of the “clear which heavily case, however, jurisdiction this ants re- rare none of rele would suffer if tained”). vant here none of events occurred and- proof are here.” 589 F.2d sources with the Our has discussion so far dealt at 1164. clear- point “private interest” factors above,

As similarly outlined our case is not ly towards retention of rare. would be if not unfair to force forum, It odd as the chosen plaintiff, who chose this fo- Belgian and, expeditious most convenient and rum, go to Taiwan at the behest indeed, plaintiff one where who right has its own home office Turning to the realistically justice. obtain forum, when most of the actors involved in “public interest” of the Gilbert anal- aspect the case are not located in Taiwan but case have Taiwan contacts in this ysis, the closer to New York. Although dis- significance. little or no *6 in having local trict court saw little interest Third, more convenient supposedly York, Taiwan has this case decided in New all. reality forum is in no forum at parties greater no Neither of interest. believe, represents, and we are inclined to is of the Taiwanese and none matter practical complain- be individuals involved seems to will ruling deny any day court’s it in court truth, proposed anything. of neither at all it is half going go way since not to particular forum has a affirmative around world hire counsel contemplat- type interest in this case of the there, and then try, compulsory without (“there ed is a local interest Gilbert process, get there from go witnesses decided at having localized controversies England, Belgium. home,” 509, 67 330 U.S. at S.Ct. again distinguishes circumstance this case by the ad- both forums be burdened III specifically where dition of the case to their dockets. said, is no suggestion “there record that Trinidad is forum.” adequate not the contacts Tai One effect of At 871 n.16. wan be to cause Taiwanese substantive will

It is perversion almost a law the issues in applied the forum non to some of plaintiff, heavily remit a relied conveniens doctrine to case. district court expediency, the name of forum in But “the to a on this fact and it is relevant. which, will unable law in itself a realistically, apply foreign it be need to is not forum non apply suit when the defendant would be reason to the doctrine of conveniens,” v. prejudiced by having Corporation to defend at Societe genuinely Olympic Here, 376, 1972), Generale, home in the chosen 379 forum. 462 F.2d 68 an excessive guard against we must deciding the task of reluctance to undertake BOARD OF EDUCATION OF CITY law, foreign a chore federal courts SCHOOL DISTRICT OF CITY OF See, v. perform. Ciprari often Servicos Macchiarola, NEW YORK and Frank Sul, S.A., F.Supp. do 232 Aereos Cruzeiro City Chancellor of the School District

433, (S.D.N.Y.1964); Tankers 443 Mobil Co. York, Plaintiffs-Appel- City of New 611, Co., v. Mene Grande Oil 615 lees, denied, 945, (3d Cir.), cert. U.S. 318, (1966). Proof of for L.Ed.2d eign law be a burden in this HUFSTEDLER, Secretary Shirley M. enough push it is not alone the balance Department the United of Educa- States convenience in favor of the de tion, Goldberg, Associate Herman R. fendant. The other non conveniens Commissioner, Equal Op- Educational foregoing factors must do but our portunity Programs, States De- United analysis of them shows that in fact do Education, partment and Roma Stew-

just opposite. art, for Civil Director of the Office The doctrine of forum non conveniens Rights, Department United States in inappropriate intended to avoid trial fo- Education, Defendants-Appellants. rums, not to avoid If this is meritless suits. suit, such a Avon can protected by No. Docket 80-6050. judge’s trial using discretionary powers his Appeals, United Court of States to force testimony if it wants the Second Circuit. Avon representatives, overseas to advance the expenses bringing them here or coun- Argued Dec. 1980. sel taking depositions fees for their abroad. Unless Manu prove dealing can an exclusive Feb. 1981. Decided contract with- Chu and that Avon induced breach, much of Manu’s action dis-

missible on summary judgment. motion for route,

But the forum ap- non conveniens

pealing busy judges, as it is to trial is not proper way go about this.

The judgment of the district court is re-

versed. GRAAFEILAND,

VAN Judge: Circuit

Because I continue to believe that Alcoa

Steamship Regent, Co. v. M/V Nordic

F.2d 860 wrongly decid-

ed, I am pleased my colleagues are able

to distinguish it. other courts Unless follow lead, forum non conveniens bids fair to becojne a procedural ploy designed to dis- rather than an instrument for the

comfit furtherance justice.

I concur in the result.