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Shi v. New Mighty U.S. Trust

United States Court of Appeals, District of Columbia Circuit

March 15, 2019

Robert Shi, as executors of the will of Yueh-Lan Wang, et al., Appellants
v.
New Mighty U.S. Trust, et al., Appellees

          Argued December 11, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-01743)

          Daniel S. Weinberger argued the cause and filed the briefs for appellants.

          John 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.

          OPINION

          Rogers, Circuit Judge:

         This is 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).

         The 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.

         I.

         The 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.

         This 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).

         A.

         The 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.

         Here, 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 ...


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