United States Court of Appeals, District of Columbia Circuit
Robert Shi, as executors of the will of Yueh-Lan Wang, et al., Appellants
New Mighty U.S. Trust, et al., Appellees
December 11, 2018
from the United States District Court for the District of
Columbia (No. 1:10-cv-01743)
S. Weinberger argued the cause and filed the briefs for
L. Gardiner argued the cause for appellees. With him on the
brief were Andrew Muscato and David B. Leland.
Before: Rogers, Griffith and Pillard, Circuit Judges.
Rogers, Circuit Judge:
the second time this case has come before the court. The
first time the court held that the district court had
jurisdiction and reversed the dismissal of the complaint for
lack of diversity. Wang ex rel. Wong v. New Mighty U.S.
Trust, 843 F.3d 487 (D.C. Cir. 2016). The underlying
factual circumstances are summarized there. See id.
at 488-89. Suffice it to say, in 2010, Yueh-Lan Wang, the
widow of Taiwanese plastics magnate and billionaire
Yung-Ching ("Y.C.") Wang, sued three D.C.-based
entities (hereinafter "the Trusts") created before
her husband's death, alleging that the transfer of a
large portion of her husband's assets to the Trusts
unlawfully denied her the full marital estate to which she
was entitled. Suing initially through Dr. Wong to whom she
had granted her power of attorney and upon her death in 2012
through the executors of her estate, the widow raised claims
under District of Columbia and Taiwanese law. After seven
years of litigation on whether diversity jurisdiction exists,
as well as litigation in Taiwan to appoint executors for her
estate, the Trusts moved to dismiss the complaint on
forum non conveniens grounds. The district court
granted the motion, subject to conditions that the Trusts
consent to process and jurisdiction in Taiwan and also waive
statute of limitations defenses, their necessary or
indispensable parties argument, and challenges to the power
of attorney used to file suit. Hsu v. New Mighty U.S.
Trust, 288 F.Supp.3d 272 (D.D.C. 2018); Hsu v. New
Mighty U.S. Trust, 308 F.Supp.3d 178 (D.D.C. 2018).
Executors of the widow's estate appeal. They do not
contest that Taiwan is an adequate alternative forum to the
extent its judicial system could, with the Trusts'
consent, assert jurisdiction over them and afford some type
of remedy for the widow's claims, see Hsu, 288
F.Supp.3d at 282-86. Instead, the Executors contend the
district court's balancing misapplied the private and
public factors and consequently failed to hold the Trusts to
their heavy burden when it dismissed the complaint. For the
following reasons, we conclude we must reverse and remand the
case to the district court.
Supreme Court has instructed both that a court may decline to
exercise jurisdiction pursuant to the doctrine of forum
non conveniens only "in exceptional
circumstances," Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 504 (1947), and that "[a] defendant invoking
forum non conveniens ordinarily bears a heavy burden
in opposing the plaintiff's chosen forum,"
Sinochem Int'l Co. v. Malay. Int'l Shipping
Corp., 549 U.S. 422, 430 (2007). In determining whether
to dismiss a case on forum non conveniens grounds,
the district court "must decide (1) whether an adequate
alternative forum for the dispute is available and, if so,
(2) whether a balancing of private and public interest
factors strongly favors dismissal." Agudas Chasidei
Chabad of U.S. v. Russian Federation, 528 F.3d 934, 950
(D.C. Cir. 2008). The court must balance the relevant private
and public interest factors in light of the degree of
deference the plaintiff's choice of forum deserves.
El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 676-77
(D.C. Cir. 1996), abrogated on other grounds by Samantar
v. Yousuf, 560 U.S. 305 (2010). "[U]nless the
balance is strongly in favor of the defendant, the
plaintiff's choice of forum should rarely be
disturbed." Gilbert, 330 U.S. at 508.
court's review of the dismissal of a complaint on
forum non conveniens grounds is for "clear
abuse of discretion" because that "determination is
committed to the sound discretion of the trial court."
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257
(1981). Such abuse occurs where the trial court "fails
to consider a material factor or clearly errs in evaluating
the factors before it, or does not hold the defendants to
their burden of persuasion." Simon v. Republic of
Hungary, 911 F.3d 1172, 1182 (D.C. Cir. 2018) (quoting
El-Fadl, 75 F.3d at 677). This court accepts as true
all factual allegations in the complaint and draws all
reasonable inferences in favor of the nonmoving party.
Ctr. for Law & Educ. v. Dep't of Educ., 396
F.3d 1152, 1156 (D.C. Cir. 2005).
Executors contend as a threshold matter that the district
court erred in granting the Trusts' motion to dismiss on
forum non conveniens grounds because this ground was
not raised until seven years after the litigation began. The
Executors point to decisions in a number of circuits that
have concluded the defendant must file a motion to dismiss
for forum non conveniens "within a reasonable
time after the facts or circumstances which serve as the
basis for the motion have developed and become known or
reasonably knowable to the defendant." In re Air
Crash Disaster Near New Orleans, La. on July 9, 1982,
821 F.2d 1147, 1165 (5th Cir. 1987), vacated on other
grounds sub nom. Pan Am. World Airways, Inc. v. Lopez,
490 U.S. 1032 (1989); accord Rustal Trading US, Inc. v.
Makki, 17 Fed.Appx. 331, 338 (6th Cir. 2001); see
also SerVaas Inc. v. Republic of Iraq, 540 Fed.Appx. 38,
41-42 (2d Cir. 2013); Zelinski v. Columbia 300,
Inc., 335 F.3d 633, 643 (7th Cir. 2003); Lony v.
E.I. Du Pont de Nemours & Co., 935 F.2d 604, 614 (3d
Cir. 1991); Cable News Network L.P. v. CNNews.com,
177 F.Supp.2d 506, 528 (E.D. Va. 2001), aff'd in part
and vacated in part on other grounds, 56 Fed.Appx. 599
(4th Cir. 2003). These courts have recognized that the longer
litigation continues in a U.S. court and the parties incur
expenses before the defendant moves to dismiss on forum
non conveniens grounds, the less the defendant can
legitimately claim that litigation in a U.S. forum is so
inconvenient as to be oppressive or harassing. See,
e.g., Air Crash, 821 F.2d at 1165. In other
words, as regards the costs to the parties and the courts
that must be considered when balancing the private and public
interests, "a defendant's dilatoriness promotes and
allows the very incurrence of costs and inconvenience the
doctrine is meant to relieve," id., which
weighs against dismissal. See id. at 1165 &
n.30; Zelinski, 335 F.3d at 643.
the facts and circumstances that underlie the forum non
conveniens ground remained virtually unchanged since the
complaint was filed in 2010, yet the Trusts did not move to
dismiss the complaint on this ground until 2017, after this
court reversed the dismissal for lack of diversity and
remanded the case. In a memorandum of law filed in 2012, the
Trusts stated in a footnote they "reserve[d] their
right" to move to dismiss the complaint on forum non
conveniens grounds, indicating they recognized certain
facts and circumstances existed at the time that could
justify such a motion. Some of the delay is attributable to
litigation on the appointment of executors for the
widow's estate in Taiwan, and some is attributable to
this court holding her appeal in abeyance pending the Supreme
Court's decision in Americold Realty Trust v. ConAgra
Foods, Inc., 136 S.Ct. 1012 (2016). Still, the same law
firm and lawyer representing the Trusts in the D.C.
litigation also represented defendants (one of whom manages
the Trusts based in D.C.) in a similar suit filed by the
widow on the same day in the federal court in New Jersey,
see Shu v. Wang, No. 10-5302, 2016 WL 6080199, at
*4-5 (D.N.J. Oct. 17, 2016), and filed a forum non
conveniens motion in 2011, just 9 months after the
complaint was filed, id. at *5. Meanwhile, instead
of moving to dismiss for forum non conveniens, the
D.C.-based Trusts incurred substantial expenses pursuing
other litigation strategies, including a motion to dismiss
for lack of diversity jurisdiction, a petition for a writ of
certiorari to the Supreme Court, and oppositions to the
Executors' motions to substitute for the widow in ...