Michael E.A. FORD, Plaintiff-Appellee, v. Robert Winston BROWN, Exxon Corporation, Defendants-Appellants.
No. 01-14141.
United States Court of Appeals, Eleventh Circuit.
Jan. 30, 2003.
319 F.3d 1302
We held in Body that “fiscal intermediaries themselves will not be liable to the Government for any of the payments . . . certified by [its] certifying officers and disbursed by disbursing officers.” 156 F.3d at 1111. This absolute immunity was, we held, a recognition of the unique administrative function that fiscal intermediaries play in the operation of the Medicare system and Congress‘s unwillingness to impose liability for the vast amounts of federal money they disburse. Id. at 1112. Relators may not circumvent this immunity and recover for fraudulently disbursed payments by simply alleging a failure to audit.
In our Body decision, we noted that the statutory immunity is not so broad as to foreclose all claims against fiscal intermediaries. See 156 F.3d at 1112, n. 26. Our decision today is not to the contrary. If Aetna, in fact, failed to fulfill its contractual obligation to properly audit St. Johns‘s records, then it might be liable to the United States, or a qui tam relator, under the False Claims Act for submitting a claim for payment for auditing services never rendered. The legal or factual feasibility of such a claim is not before us, however, in this interlocutory appeal.
In sum, Relators’ allegations that St. Johns presented false claims to Aetna—pursuant to a scheme fashioned by St. Johns, Friedman, and Aetna to defraud the United States—and that Aetna knowingly, recklessly, or negligently approved such claims for payment are not actionable due to Aetna‘s statutory immunity, and we instruct the district court to strike them from the amended complaint.20 Relators’ qui tam claim, if they indeed have one under the False Claims Act, is limited to the false claims, if any, Aetna presented to the Secretary (within the statute of limitations time period) for auditing St. Johns‘s records.
SO ORDERED.
William J. Boyce, D. Dudley Oldham, Anne M. Rodgers, Darryl Wade Anderson, Fulbright & Jaworski, L.L.P., Houston, TX, Marty Steinberg, Walfrido J. Martinez, Hunton & Williams, Mark Paul Schnapp, Greenberg & Traurig, Miami, FL, for Defendants-Appellants.
Before TJOFLAT, COX and BRIGHT*, Circuit Judges.
TJOFLAT, Circuit Judge:
The Castle Peak “B” Power Station,1 located in Hong Kong, exploded on August
After Plaintiff brought this action, Defendants moved to dismiss it on doctrines of comity and forum non conveniens, and for failure to state a claim for relief. The district court denied their motion, and certified its ruling for interlocutory appeal pursuant to
I.
Soon after the power station exploded, an Inquest into the cause of the accident was convened by the Hong Kong Coroner.4 CLP and CAPCO retained the London firm of Holman, Fenwick & Willan (“HFW“).5 One of HFW‘s solicitors, Guy Hardaker, retained Plaintiff as the barrister for the Castle Peak Inquest.6 In the course of his work on the Castle Peak Inquest, Plaintiff became acquainted with Defendant Robert Brown, who worked as in-house legal counsel to EEL in Hong Kong. (Plaintiff alleges that although Brown purported to serve at the behest of EEL, Brown was in fact an agent of Defendant Exxon Corp.)
While Plaintiff was preparing for the Inquest, he became suspicious that Exxon Corp. and Brown (both in the United States), in conjunction with other parties working on behalf of CLP and CAPCO,
Defendants have a different story. First, they contend that they had nothing to do with the events that transpired in Hong Kong. They had no influence over the hiring or firing of Plaintiff, nor were they part of the legal team comprised of CLP and CAPCO lawyers. Second, they argue that Plaintiff‘s “cover-up” theory is a lie. Rather, Plaintiff was not sufficiently prepared to represent CLP and CAPCO at the Inquest, and he invented the cover-up story in order to cease his representation without harm to his reputation. Defendants also point to another reason for firing Plaintiff: he allegedly lied about being instructed by the Hong Kong Bar Association to cease his participation in the Inquest. Defendants point to various affidavits from officials with the Hong Kong Bar Association that the Association never instructed Plaintiff to withdraw from his representation of CLP and CAPCO.
After he was fired, Plaintiff retained several documents relating to his representation of CLP and CAPCO. Plaintiff refused to hand over the documents, and CLP and CAPCO filed suit, alleging conversion and breach of Plaintiff‘s duty of attorney-client confidentiality. CLP and CAPCO obtained a preliminary injunction from the Supreme Court of Hong Kong.11 This injunction enjoined Plaintiff from releasing to third parties any of the documents or information that Plaintiff obtained in the course of his representation of CLP and CAPCO in the Castle Peak Inquest. The litigation continued in Hong
While under the preliminary injunction,13 Plaintiff filed suit in Texas state court using the documents and information retained from his representation of CLP and CAPCO during the Coroner‘s Inquest. Plaintiff eventually dismissed his case in Texas and refiled it in Florida.14 In 1994—after Plaintiff filed suit in Texas but prior to the Florida litigation—the Supreme Court of Hong Kong entered the final judgment against Plaintiff (discussed supra). In a similar vein, the Hong Kong Bar Association instituted disciplinary proceedings against Plaintiff. The Bar Association ultimately suspended Plaintiff from practicing law as a barrister in Hong Kong for four years.15
As a result of his public termination from the Castle Peak investigation and a host of public statements, Plaintiff claims that his reputation as a barrister in Hong Kong was destroyed. He brought suit pursuant to the district court‘s diversity jurisdiction,
II.
A.
The doctrine of forum non conveniens “authorizes a trial court to decline to exercise its jurisdiction, even though the
An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, “vex,” “harass,” or “oppress” the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff‘s choice of forum should rarely be disturbed.
Factors of public interest also have a place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947).
This court has provided additional glosses on the forum non conveniens doctrine that are especially relevant to this case. For example, we recently concluded that “the bias towards the plaintiff‘s choice of forum is much less pronounced when the plaintiff is not an American resident or citizen.” Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1312 n. 15 (11th Cir.2002). In the same case, we maintained that “foreign relations are implicated in the forum non conveniens calculus.” Id. at 1313. Thus, “federal courts necessarily must analyze the interest that the foreign country has in the dispute, an analysis that may raise issues of international comity.” Id. We also recently emphasized the importance of the choice-of-law factor, concluding that it is “[f]ar better that the case be tried in [a foreign country] by one or more jurists as familiar with [foreign] law as we are unfamiliar with it.” Magnin v. Teledyne Cont‘l Motors, 91 F.3d 1424, 1430 (11th Cir.2002). Finally, we described the procedure district courts must typically follow when they dismiss a case on forum non conveniens grounds: “In order to avoid unnecessary prejudice to [plaintiffs],” the district court can attach conditions to a dismissal with which the defendants must agree. Id. at 1430. In Magnin, for example, we observed that “the defendants agreed to submit to the jurisdiction of the French court, waive any statute of limitations or jurisdictional defenses, and satisfy any final judgment.” Id.
We review the district court‘s denial of Defendants’ motion to dismiss for abuse of discretion. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981). “[T]he court abuses its discretion when it fails to balance the relevant factors.” C.A. La Seguridad v. Transytur Line, 707 F.2d 1304, 1308 (11th Cir.1983). We conclude that the district court overlooked some highly relevant factors, and that it ultimately struck a balance that was an abuse of discretion.
Perhaps the most important “private interest” of the litigants is access to evidence. Applying the factors suggested by Justice Jackson in Gilbert—access to proof, availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining witnesses—it becomes apparent that the balance weighs strongly against adjudicating this dispute in Florida. A correct “private interest” analysis begins with the elements of the plaintiff‘s causes of action. The court must then consider the necessary evidence required to prove and disprove each element. Lastly, the court should make a reasoned assessment as to the likely location of such proof. See Van Cauwenberghe v. Biard, 486 U.S. 517, 528, 108 S.Ct. 1945, 1953, 100 L.Ed.2d 517 (1988) (“To examine ‘the relative ease of access to sources of proof,’ and the availability of witnesses, the district court must scrutinize the substance of the dispute between the parties to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff‘s causes of action and to any potential defenses to the action.“) (citation omitted).
In this case, all of the alleged acts occurred in Hong Kong. Moreover, the acts occurred in the course of Plaintiff‘s representation of Hong Kong clients in an Inquest on the subject of an explosion that occurred in Hong Kong.18 Based upon these facts alone, it is apparent that much of the evidence is likely to be in Hong Kong (unless, of course, documents and witnesses have moved19). A trial on defamation and interference with business relations will necessarily focus on Plaintiff‘s reputation in the Hong Kong community—both before and after the alleged acts—as well as other factors that might have sparked a decline in his business (e.g., the impact of Hong Kong‘s reversion to China in 1997). The damages stage of the trial will similarly focus on the effect of the firing upon Plaintiff‘s law practice—a practice that revolved around a Hong Kong client base. The circumstances surround-
Plaintiff, like the district court, pointed to the alleged “conspiracy theory” and the fact that Defendants reside in the United States, not Hong Kong. But these points are relevant only to the “who” question—i.e., who, precisely, committed the alleged acts of defamation, intentional infliction of emotional distress, and interference with business relations? Were these acts committed only by the direct purveyors of the allegedly defamatory statements (i.e., agents of CLP and CAPCO)? Or were the statements made at the behest of powerful executives at Exxon Corp.? Thus, the only way the United States is implicated in this litigation at all is that Defendants might have worked “behind the scenes” to achieve the goal of the alleged conspiracy (namely, a cover-up of the true cause of the explosion), including the silencing of potential whistleblowers by destroying their careers.21 While the “who” question is no doubt important, it is only one of the many facts that must be proved in this case. Moreover, to the extent that the corporate connectedness between Exxon Corp. and Castle Peak is relevant, the evidence of this connectedness exists pri-marily in Texas, not Florida. Of the sixteen Exxon employees appearing on Plaintiff‘s proffered witness list, one has died and eleven live in Texas, not Florida. Indeed, all of the witnesses, with the exception of defendant Brown, live outside of Florida. In short, most of the evidence in this litigation is in Hong Kong, while some witnesses are in England and others are in Texas. Florida is relevant only because one alleged Exxon employee, defendant Brown, happened to live in Florida at the time Plaintiff took a notion to sue. Of all possible forums, Florida is unquestionably the worst.
On the “public interest” side of the equation, the district court overlooked important comity concerns that are implicated by its decision to entertain this suit.22 See Esfeld, 289 F.3d at 1312. Plaintiff essentially wants the district court to contradict the conclusion of the Hong Kong courts and the Hong Kong Bar Association that there was no conspiracy. He also asks the district court to enable him to use confidential client information—a tactic that would not be available in Hong Kong in light of the permanent injunction. The district court is, in short, being asked to overlook the respect that a foreign sovereign is due. See Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 534 n. 27, 107 S.Ct. 2542, 2556 n. 27, 96 L.Ed.2d 461 (1987) (“Comity refers to the
The public and private interest factors point to only one conclusion: this case should not be litigated in Florida. The district court‘s analysis was flawed in three respects. First, the court did not consider the elements of the causes of action (e.g., the harm to reputation that must be proved in a defamation claim) and the likely sources of proof. Instead, it focused solely upon one issue—whether Defendants in fact played a role in the allegedly tortious acts.
Second, the district court concluded that Hong Kong is an unavailable forum,25 even though Defendants waived defenses based upon jurisdiction and the statute of limitations. In Magnin, 91 F.3d at 1430-31, we approved of conditional dismissals, in which the district court dismisses the case only if the defendant waives jurisdiction and limitations defenses, and only if it turns out that another court ultimately exercises jurisdiction over the case. We never indicated that a defendant must have an affidavit from a lawyer in the foreign jurisdiction predicting that the foreign tribunal will ultimately assert jurisdiction over the case and recognize any limitations waiver.26 Since the district court‘s dismissal is conditional, it may reassert jurisdiction in the event that the foreign court refuses to entertain the suit.
Third, the district court erred in its assessment of the location of the relevant evidence. Not only did it fail to use Plaintiff‘s causes of action as a guidepost, it also looked to facts that are of no consequence. Consider, for example, the district court‘s conclusion that Defendants “undermined their original argument that positively everything having to do with the instance case occurred in, and can be found in, Hong Kong” when they argued that five of the key witnesses (including Plaintiff) live in England. The fact that prominent witnesses are located in England only underscores the point that Florida is an inappropriate forum. Indeed, Defendants were willing to submit to the jurisdiction of England, too. It is perfectly reasonable to argue that although Hong Kong is the best forum, England is the second best forum. Taken together, these two propositions establish that there is little to be said for Florida. Yet the district court somehow believed that the fact that some witnesses live in England dilutes the attractiveness of Hong Kong such that neither forum is superior to Florida. We find this conclusion puzzling.
We also find it troubling that the district court gave so much weight to Defendants’ ability to produce evidence at the joint hearing on sanctions and the forum non conveniens motions. Under this theory, if the Defendants produce evidence, they risk losing their forum non conveniens battle because they have shown that it is not too difficult to gather the needed evidence; if they do not produce evidence, they will lose because they have the burden of proof of establishing that the forum non conveniens balancing test weighs in favor of dismissal. The law does not put to defendants this Hobson‘s choice.
III.
For the foregoing reasons, the district court‘s order is REVERSED and the case is REMANDED with the instruction that the district court conditionally dismiss the case.
SO ORDERED.
BRIGHT, Circuit Judge, concurring:
I agree with the majority that the district court erred in concluding that Hong Kong was an unavailable forum. The district court should have conditionally dismissed Ford‘s claims in favor of jurisdiction in Hong Kong.
As the majority explains above,1 the district court misread the decision in Magnin v. Teledyne Cont‘l Motors, 91 F.3d 1424 (11th Cir.1996). Supra at 1310-1311. Instead, the district court concluded that Hong Kong was not an available forum because the defendants failed to “provide any evidence to support the assertion that Hong Kong is an available forum.” Dist. Ct. Op. at 16. Had the district court properly applied the law in Magnin, it might have concluded that Hong Kong was an available forum.
I add some additional comments about the litigation. In examining the public interest factors, I do not believe the district court‘s choice of Florida over England would have been irrational or improper. The district court stated in reference to retaining jurisdiction in the United States District Court for the Southern District of Florida:
When “extensive pretrial discovery and proceedings have already taken place over a period of years in the current forum, that current forum would not be significantly more overburdened and inconvenienced were it to continue exercising jurisdiction over the case. Schexnider, 817 F.2d at 1163. This factor most definitely weighs in favor of Plaintiffs, as this Court has presided over nearly a dozen days of evidentiary hearing on just the forum non conveniens and motions for sanctions issues. The sheer volume of evidence and the parties’ filings relating to these issues alone is larger than that of most of the cases currently pending before this Court. Moreover, not only has this Court engaged in serious deliberation regarding the instant case, but also Magistrate Judge Dubé has worked diligently on several case management and discovery issues. Clearly, this factor weighs in favor of the Court retaining jurisdiction over the instant case.
Dist. Ct. Op. at 27-28. The district court spent a significant amount of time and energy in weighing whether it should retain jurisdiction over Ford‘s case.
Finally, I disagree with the majority‘s statement that “[o]f all possible forums, Florida is unquestionably the worst.” Supra at 1309. In regard to whether Florida had an interest in retaining jurisdiction over the case, the district court commented:
Depending on how one conceives of the instant case, the controversy may invoke the “local interests” of Hong Kong and/or the United States. The basis of Plaintiff‘s Complaint involves events that occurred, in substantial part, or at least took effect in Hong Kong. However, Plaintiff‘s theory of his case is that employees of Defendant Exxon engaged in decisions in Texas that impacted Plaintiff in Hong Kong. In this way, the controversies directly at issue here involve an American defendant taking action in the United States. These decisions, due to the ease with which business is increasingly conducted globally, came to fruition in Hong Kong. In short, an American jury has an interest in deciding controversies involving domestic Defendants who acted both at home and abroad.
Dist. Ct. Op. at 28. The district court gave the issues in this case careful consideration during an eleven-day hearing.
The trial court erred in construing the applicable law. Thus, its assessment of
TJOFLAT
CIRCUIT JUDGE