UNITEDNET LTD.; LEVI RUSSELL, Plaintiffs - Appellants, v. TATA COMMUNICATIONS AMERICA, INC.; TATA COMMUNICATIONS INDIA; TATA SONS PRIVATE, LTD.; STEVEN LUCERO; LATINGROUP, LLC, Defendants - Appellees.
No. 23-2057
United States Court of Appeals for the Tenth Circuit
August 19, 2024
PUBLISH
Scott Fuqua of Fuqua Law & Policy, P.C., Santa Fe, New Mexico, for Plaintiffs - Appellants.
Douglas D. Janicik (Karl Tilleman with him on the brief) of Dentons US LLP, Phoenix, Arizona, for Defendants - Appellees Steven Lucero and LatinGroup, LLC.
Philip D. Robben (Randall L. Morrison Jr. with him on the brief) of Kelley Drye & Warren LLP, New York, New York, for Defendants - Appellees Tata Communications India, Ltd. and Tata Sons Private, Ltd.
Katherine A. McNamara of Fraser Stryker PC LLO, Omaha, Nebraska, for Defendant - Appellee Tata Communications America, Inc.
Before BACHARACH, McHUGH, and MORITZ, Circuit Judges.
MORITZ, Circuit Judge.
This case arises from a foreign business deal gone wrong. In 2016, Unitednet, Ltd., a United Kingdom company, entered into an agreement to purchase a fiber-optic telecommunications network owned by three foreign companies that are part of a multinational conglomerate described in the complaint as the “Tata Communications empire.” App. vol. 1, 3. But Steven Lucero, a New Mexico resident and key player in the deal, allegedly conspired with
Background
The facts of this case, as alleged in the complaint, describe a failed business deal that began in 2013, when Tata Sons Private, Ltd., an Indian investment holding company, decided to sell all noncore assets of the Tata empire to pay down its debt.1 One such asset was a fiber-optic telecommunications network that runs from the United Kingdom to the Netherlands. Through family connections to the Tata empire, Lucero learned of the sale and agreed to purchase the network “at a price well below market value” via his company, LatinGroup. Id. at 4. In early 2014, LatinGroup formally entered into a preliminary agreement to purchase the network from three foreign Tata companies—Tata Communications (UK) Ltd., Tata Communications (Netherlands) B.V., and Tata Communications (Bermuda) Ltd. (together, Tata sellers).
During the ensuing negotiations, however, Lucero changed plans and decided to purchase the network through a separate corporate entity. To that end, Lucero formed Unitednet in the United Kingdom and had LatinGroup assign its purchase rights to Unitednet. Lucero also made Russell, a United Kingdom resident, Unitednet’s director and promised him an equity stake in the company as compensation. Based on that promise, Russell spent the next several years working on the deal.
But at some point, Lucero allegedly changed course yet again and decided to sabotage the deal. Lucero realized that he would stand to gain if he could complete the purchase through LatinGroup, as originally planned, rather than through Unitednet. In an effort to sink the deal, Lucero allegedly “played a dual game in which he exerted near total control over the negotiations [between Unitednet and the Tata sellers] for the purchase of the [network].” Id. at 5. Lucero purported to represent Unitednet’s interests “while at the same time working behind the scenes” with three other Tata companies—Tata Communications America, Inc., based in Virginia; Tata Communications India, Inc., based in India; and Tata Sons Private, the Indian investment holding company (together, Tata defendants)—to control the position of the Tata sellers. Id. In so doing, Lucero allegedly conspired with the Tata defendants to impose onerous terms on Unitednet, including a condition that Unitednet obtain a letter from a bank or investor showing that it had secured nearly $11 million in funding for the purchase.
In April 2016, the Tata sellers requested that Unitednet produce the funding letter, but Unitednet failed to meet the 30-day deadline provided in the agreement. Eventually, after over a year without receipt of the requisite funding letter, the Tata sellers terminated the agreement.
Unitednet and Russell then filed this suit in the District of New Mexico against Lucero, LatinGroup, and the Tata defendants (but not the Tata sellers). Plaintiffs asserted claims against all defendants for tortious interference with contract, civil conspiracy, and quantum meruit. They also alleged breach of fiduciary duty against Lucero, as well as aiding and abetting breach of fiduciary duty against LatinGroup and the Tata defendants. Specifically, they asserted that Lucero took on responsibility for obtaining the required funding, but he repeatedly failed to do so and actively prevented Unitednet from securing financing.
Lucero and LatinGroup moved to dismiss the claims brought against them under the doctrine of forum non conveniens, arguing that the forum-selection clause in the agreement required plaintiffs to bring those claims in the United Kingdom. See Atl. Marine Constr. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex., 571 U.S. 49, 60 (2013) (explaining that procedurally, “the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens” (italics omitted)). The same day, Tata Communications America also moved to dismiss the claims brought against it for forum non conveniens.
The district court denied Lucero and LatinGroup’s motion. It concluded that neither Lucero nor LatinGroup could enforce the forum-selection clause because they were not signatories to the agreement, and “the [a]greement expressly disclaims conferring any rights or remedies upon non[]signatory third parties.” Supp. App. 71. But the district court granted Tata Communications America’s motion. Unitednet, Ltd. v. Tata Commc’ns Am., Inc. (Unitednet I), No. 21-cv-01081, 2022 WL 1604802, at *17 (D.N.M. May 19, 2022). It determined that even though Tata Communications America also could not enforce the forum-selection clause, dismissal was appropriate under the typical forum non conveniens analysis because (1) the parties did not dispute that the United Kingdom was an appropriate and available alternative forum; (2) foreign law governs the claims; and (3) the private and public interests favor dismissal. See Archangel Diamond Corp. Liquidating Tr. v. Lukoil, 812 F.3d 799, 804 (10th Cir. 2016) (describing typical forum non conveniens analysis that applies when there is no valid and
In response to the show-cause order, plaintiffs asked the district court to reconsider its forum non conveniens analysis but did not otherwise object to the court extending its analysis to the remaining claims. Plaintiffs also filed a one-paragraph motion to reconsider, which incorporated and referenced their response to the show-cause order. The district court denied plaintiffs’ motion and conditionally dismissed the claims against the remaining defendants for forum non conveniens. Unitednet, Ltd. v. Tata Commc’ns Am., Inc. (Unitednet II), No. 21-cv-01081, 2023 WL 2665578, at *11 (D.N.M. Mar. 28, 2023). The district court imposed the same conditions it had placed on Tata Communications America, except that it did not require the two other Tata defendants—Tata Sons Private and Tata Communications India—to consent to jurisdiction in the United Kingdom (a condition they objected to).2
Plaintiffs appeal.
Analysis
Plaintiffs argue that the district court erred in dismissing the action for forum non conveniens. We review a forum non conveniens dismissal for abuse of discretion. Lukoil, 812 F.3d at 803. Under this standard, “we examine the district court’s legal determinations de novo[] and its underlying factual findings for clear error.” Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009).
Forum non conveniens is a flexible, common-law doctrine that empowers a district court to decline jurisdiction over a case when another forum is better suited to adjudicate the dispute. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947). The doctrine’s “central purpose . . . is to ensure that the trial is convenient.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981). Dismissal on forum non conveniens grounds “will ordinarily be appropriate where trial in the plaintiff’s chosen forum imposes a heavy burden on the defendant or the court[] and where the plaintiff is unable to offer any specific reasons of convenience supporting [that] choice.” Id. at 249.
When evaluating a motion to dismiss for forum non conveniens, a district court begins its analysis with two threshold questions. Lukoil, 812 F.3d at 804. First, the court asks “whether there is an adequate alternative forum in which the defendant is amenable to process.” Gschwind v. Cessna Aircraft Co., 161 F.3d 602, 605 (10th Cir. 1998). Second, it considers “whether foreign law applies.” Id. If (and only if) “the answer to both questions is yes,” the court then weighs a list of private and public interests to determine whether to dismiss for forum non conveniens. Id. at 605–06. Usually, the court applies “a strong presumption in favor of [a domestic] plaintiff’s choice of forum” because “it is reasonable to assume that this choice is convenient” for the plaintiff. Piper Aircraft, 454 U.S. at 255–56.
On appeal, plaintiffs do not dispute that the United Kingdom offers an adequate alternative forum. But they challenge the district court’s choice-of-law determination that foreign law applies and its finding that the private- and public-interest factors favor dismissal.
I. Choice of Law
We first consider the threshold choice-of-law issue, which we review de novo. Lukoil, 812 F.3d at 804. To determine whether foreign or domestic law governs a case, a federal court sitting in diversity applies the choice-of-law rules of the forum state—here, New Mexico.4 See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941). In New Mexico, courts follow a two-step process to resolve choice-of-law questions. See Terrazas v. Garland & Loman, Inc., 142 P.3d 374, 377 (N.M. Ct. App. 2006). They first characterize “the area of substantive law—e.g., torts, contracts, domestic relations—to which the law of the forum assigns a particular claim or issue.” Id. The courts then utilize the New Mexico choice-of-law rule applicable to the relevant area of law to determine which substantive law governs. Id.
The parties in this case agree that all but one of plaintiffs’ claims (the quantum meruit claim) sound in tort. In tort actions, “New Mexico courts follow the doctrine of lex loci delicti commissi,” which directs courts to apply the substantive “law of the place where the wrong occurred.” Id. Under this rule, the place of the wrong is “where the last event necessary to make an actor liable for an alleged tort takes place.” Restatement (First) of Conflict of Laws § 377 (Am. L. Inst. 1934). And since “[a] tort is not complete until the plaintiff suffers a cognizable injury,” that place is usually “the location of the last act necessary to complete the injury.” Santa Fe Techs., Inc. v. Argus Networks, Inc., 42 P.3d 1221, 1229 (N.M. Ct. App. 2001) (quoting Torres v. New Mexico, 894 P.2d 386, 390 (N.M. 1995)).
Plaintiffs argue that the place of the wrong was actually New Mexico, where they assert defendants engaged in the tortious conduct, including “the last act of interference (or breach of fiduciary duty).”6 Aplt. Br. 14. But plaintiffs’ assertion runs counter to the rule that there is no tort without injury. See Santa Fe Techs., 42 P.3d at 1229. Because defendants’ alleged conduct did not become an actionable tort until plaintiffs suffered an injury, the place of the wrong was where plaintiffs’ injury occurred, even if the conduct resulting in that injury took place elsewhere. See id.; First Nat’l Bank v. Benson, 553 P.2d 1288, 1289 (N.M. Ct. App. 1976) (noting that lex loci delicti doctrine requires application of “the law of the [s]tate of injury“).
Plaintiffs nevertheless insist that, at least on the tortious-interference claim, they were injured when defendants took steps to ensure they could not perform their obligations under the agreement. But the complaint does not allege that any injury resulted from such conduct until the termination of the agreement. Before that point, as defendants point out, “the fact that Unitednet did not secure the necessary funding to complete the asset purchase—which performance, in any event, was due in the [United Kingdom] (or overseas)—resulted in no actual [consequences] to United[net].” Aplee. Br. 23–24 (emphasis omitted). Indeed, the Tata sellers could have, for instance, excused plaintiffs’ nonperformance by waiving the funding-letter requirement or otherwise negotiated changes to the agreement to accommodate Unitednet’s financing issues. And had the Tata sellers done so, defendants’ alleged attempt to induce the agreement’s termination would have failed, such that plaintiffs would have suffered no injury. That is, plaintiffs would not have “los[t] the benefits
Resisting this line of reasoning, plaintiffs rely on a district-court decision, Carroll v. Los Alamos National Security, LLC, 704 F. Supp. 2d 1200 (D.N.M. 2010), aff’d, 407 F. App’x 348 (10th Cir. 2011), to argue that the last act necessary to render defendants liable here was “the tortious conduct itself.” Aplt. Br. 16. But this reliance is misplaced. In Carroll, the plaintiff sued the administrator of an employee benefit plan for negligently misrepresenting that the plan he selected would provide reimbursement for certain contributions upon retirement. 704 F. Supp. 2d at 1202–05. The Carroll court noted that although the plaintiff, who had not yet retired, need not “have suffered calculable damages before the cause of action accrues, . . . ‘there [is] no cause of action for negligence until there ha[s] been a resulting injury.‘” Id. at 1221 (alterations in original) (quoting Spurlin v. Paul Brown Agency, Inc., 454 P.2d 963, 964 (N.M. 1969)). And in the Carroll court’s view, the plaintiff had already suffered some injury: he “was forced to select his pension plan without being correctly informed about his options.” Id. at 1223–24. But here, as discussed, plaintiffs fail to allege that they suffered any injury before the Tata sellers terminated the agreement.
Plaintiffs next invoke the New Mexico Supreme Court’s decision in Torres, 894 P.2d 386, to argue that the last event necessary to give rise to liability must be the conduct of the tortfeasor, and not that of third parties like the Tata sellers. But Torres imposes no such requirement.
Here, plaintiffs do not contend that this international business dispute implicates New Mexico public-policy considerations requiring us to depart from the place-of-the-wrong rule. Rather, they argue that under this rule, New Mexico’s substantive law governs. But for the reasons discussed, plaintiffs fail to convince us that the place of the wrong in this case was New Mexico. We instead agree with the district court that the place of the wrong was overseas, where the Tata sellers terminated the agreement, because the agreement’s termination was the last event necessary to make defendants liable for the alleged torts. See Santa Fe Techs., 42 P.3d at 1229.
In short, we see no error in the district court’s conclusion that foreign law applies to plaintiffs’ tort claims. And plaintiffs do not dispute that if foreign law governs “the vast majority of the underlying dispute,” the threshold choice-of-law requirement is satisfied.9 Lukoil, 812 F.3d at 806; see also id. (“[W]e have not . . . foreclose[d] consideration of forum non conveniens when some of the claims are based on U.S. law and some are based on foreign law. To do otherwise would allow a party to avoid a forum non conveniens dismissal simply by including a [domestic] claim . . . .“).
II. Balance of Private and Public Interests
We now turn to the district court’s analysis of the private-interest and public-interest factors. Our review of that analysis “is quite limited.” Yavuz v. 61 MM, Ltd., 576 F.3d 1166, 1172 (10th Cir. 2009). Under the abuse-of-discretion standard, “[w]e must ‘carefully examine‘” the district court’s reasoning, “but where the [district] court ‘has considered all relevant public[-] and private[-]interest factors, and where its balancing of these factors is reasonable,
A. Private-Interest Factors
We begin with the private-interest factors, which concern the interests of those participating in the litigation. See Gulf Oil, 330 U.S. at 508. These factors include:
(1) the relative ease of access to sources of proof; (2) availability of compulsory process for compelling attendance of witnesses; (3) cost of obtaining attendance of willing non[]party witnesses; (4) possibility of a view of the premises, if appropriate; and (5) all other practical problems that make trial of the case easy, expeditious, and inexpensive.
The district court found that the private interests favored a foreign forum, focusing on the location of the parties and witnesses. The district court noted that it appeared from the complaint that the parties and witnesses were “located all over the world.” Unitednet I, 2022 WL 1604802, at *16; see also Unitednet II, 2023 WL 2665578, at *8. Indeed, the parties are based in the United States, the United Kingdom, and India. And the Tata sellers, “whose officers or employees are likely to be called as witnesses,” are based in the United Kingdom, the Netherlands, and Bermuda. Unitednet I, 2022 WL 1604802, at *16; see also Unitednet II, 2023 WL 2665578, at *8. So if it were to retain the case, the district court determined, the presence of the parties and witnesses would likely require extensive travel to New Mexico from the United Kingdom, India, the Netherlands, and Bermuda—an inconvenient task that would cause the parties to incur significant expenses. To be sure, the district court acknowledged, neither party presented evidence that any witnesses could not be compelled or would be unwilling to attend a trial in New Mexico. But even so, the district court remained unconvinced that plaintiffs’ suggestion of using “teleconferencing technology suffice[d] to mitigate the cost of travel and significant inconvenience that appear[ed] to favor litigation in the United Kingdom.” Unitednet I, 2022 WL 1604802, at *16; see also Unitednet II, 2023 WL 2665578, at *8.
Plaintiffs argue that the district court’s concerns about the costs associated with travel are misguided. They contend that the judicial system’s response to the COVID-19 pandemic confirms it is possible to conduct an entire jury trial by videoconference, with every witness and attorney appearing remotely. And even if some did choose to appear in person, plaintiffs maintain, those for whom travel would be too disruptive and expensive could still appear remotely. Given this availability of videoconferencing technology, plaintiffs assert that the private-interest factors “do[] not compel” dismissal here. Aplt. Br. 23.
But in evaluating the district court’s exercise of discretion, we do not ask whether the private-interest factors compel dismissal. Rather, we examine whether the district court considered the relevant factors and reasonably balanced them. See Yavuz, 576 F.3d at 1172–73. And here, the district court explicitly considered the availability of videoconferencing technology but determined that the private-interest factors, on balance, still favored dismissal because the bulk of witnesses are located abroad. While plaintiffs disagree with the district court’s analysis, they identify nothing unreasonable about it. We therefore conclude that the district court did not abuse its discretion in determining that the private-interest factors favored dismissal. See id.
That leaves us with the public-interest factors, which include:
(1) administrative difficulties of courts with congested dockets which can be caused by cases not being filed at their place of origin; (2) the burden of jury duty on members of a community with no connection to the litigation; (3) the local interest in having localized controversies decided at home; and (4) the appropriateness of having diversity cases tried in a forum that is familiar with the governing law.
The district court determined that the public-interest factors also favored dismissal. It explained that “the District of New Mexico face[s] a heavy criminal and civil docket,” and retaining this case would present “significant administrative difficulties, such as assisting the parties in their efforts to obtain witnesses from around the globe for depositions and trial.” Unitednet I, 2022 WL 1604802, at *17; see also Unitednet II, 2023 WL 2665578, at *8. The district court acknowledged that the case has some connection to New Mexico, given that Lucero resides in the state and LatinGroup maintains its principal place of business there. But beyond those two defendants, the district court observed, the complaint does not allege any ties to the state or otherwise raise a local dispute. And without a dispute local to the New Mexico community, the district court saw little public interest in burdening the community with jury service. By contrast, the district court explained, the dispute has strong ties to the United Kingdom, which possesses a much more substantial interest in deciding a case that “concerns injury to [its] citizens,” includes “an English contract,” involves the acquisition of a telecommunications network connecting the United Kingdom and Netherlands, and “will require the application of laws of the United Kingdom or England.” Unitednet II, 2023 WL 2665578, at *8; see also Unitednet I, 2022 WL 1604802, at *17. The district court thus concluded that the public-interest factors tipped in favor of litigation in the United Kingdom.
Plaintiffs insist otherwise, arguing that the public-interest factors weigh in favor of keeping the case in the District of New Mexico. In support, plaintiffs stress that they seek to apply New Mexico law to redress wrongful conduct engaged in by a New Mexico resident, his New Mexico company, and his three foreign coconspirators. But as explained above, the district court correctly concluded that foreign law, not New Mexico law, applies. And the district court recognized that two defendants reside in New Mexico but reasonably found that the United Kingdom has much stronger ties to the case and a much greater interest in resolving it. Because the district court neither ignored nor unreasonably balanced the public-interest factors, we again find no abuse of discretion. See Yavuz, 576 F.3d at 1172–73.
In sum, there is no dispute that the United Kingdom is an adequate and available alternative forum, and the district court properly determined that foreign law governs this dispute. The district court then appropriately balanced the relevant private- and public-interest factors to conclude that they favored the United Kingdom as the more convenient forum. The district court thus acted within its discretion to dismiss the case for forum non conveniens.10 See id.
Because the district court did not abuse its discretion in dismissing this action for forum non conveniens, we affirm.