SAS Institute, Inc. v. World Programming Ltd.

                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-1783


SAS INSTITUTE, INC.,

                Plaintiff - Appellant,

     v.

WORLD PROGRAMMING LIMITED,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:10-cv-00025-FL)


Submitted:   February 2, 2012              Decided:   February 16, 2012


Before WILKINSON, MOTZ, and WYNN, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


Pressly M. Millen, Robert T. Numbers, II, WOMBLE CARLYLE
SANDRIDGE & RICE, LLP, Raleigh, North Carolina, for Appellant.
Peter Brown, Dennis O. Cohen, BAKER & HOSTETLER, LLP, New York,
New York; Mark R. Sigmon, GRAEBE HANNA & WELBORN, PLLC, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               SAS   Institute,     Inc.        (“SAS”)     appeals    the   district

court’s    order       granting     World       Programming     Limited’s     (“WPL”)

motion to dismiss on grounds of forum non conveniens.                         For the

reasons that follow, we reverse the judgment of the district

court    and    remand    the   case   for       further    proceedings      in    SAS’s

chosen forum.

               We eschew a full recounting of the applicable facts,

which are well-known to the parties.                      On appeal, SAS suggests

several reasons why the district court erred in its forum non

conveniens       determination.         Having          thoroughly     reviewed      the

record,    we    are    convinced    that,       even     assuming    that   the   U.K.

courts are an adequate and available forum for the claims raised

by SAS in its North Carolina filing, the district court abused

its discretion in concluding that WPL met its burden of proving

that the balance of conveniences weighed in favor of dismissing

the North Carolina action.

               A federal court may dismiss a case on the ground of

forum non conveniens “when an alternative forum has jurisdiction

to hear [the] case, and . . . trial in the chosen forum would

establish . . . oppressiveness and vexation to a defendant . . .

out of all proportion to plaintiff’s convenience, or . . . the

chosen    forum        [is]   inappropriate        because      of    considerations

affecting the court’s own administrative and legal problems.”

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Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S.

422,    429   (2007)       (alterations         in       original).            A    trial   court’s

forum non conveniens determination “may be reversed only when

there has been a clear abuse of discretion.”                                       Piper Aircraft

Co. v. Reyno, 454 U.S. 235, 257 (1981).

              Nevertheless,            “the    Supreme       Court       has       established      an

analytical framework which, as applied by this court, must guide

the    district        court’s    analysis”          when    it     is       confronted      with    a

motion invoking forum non conveniens.                              Jiali Tang v. Synutra

Int’l, Inc., 656 F.3d 242, 248 (4th Cir. 2011).                                          Under this

framework,        a     district        court        “must        determine          whether       the

alternative forum is:                  1) available; 2) adequate; and 3) more

convenient        in     light     of     the       public        and        private      interests

involved.”        Id.      Thus, a district court’s forum non conveniens

determination may amount to an abuse of discretion if “it failed

to consider a material factor or clearly erred in evaluating the

factors before it,” or did not hold the movant to its “burden of

persuasion        on     all     elements           of    the      forum       non       conveniens

analysis.”         Galustian v. Peter, 591 F.3d 724, 731 (4th Cir.

2010).    See also Piper Aircraft, 454 U.S. at 257.

              A    party    seeking       dismissal          on    grounds          of   forum     non

conveniens        “ordinarily          bears    a    heavy      burden        in    opposing       the

plaintiff’s chosen forum.”                     Simochen, 549 U.S. at 430.                          The

moving    party        bears     the    burden       not     only       of    showing       that    an

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adequate alternate forum exists, Jiali Tang, 656 F.3d at 249,

but    also    “that    the   balance       of    private       and    public    interest

factors      favors    dismissal.”         Carijano       v.    Occidental      Petroleum

Corp., 643 F.3d 1216, 1224 (9th Cir. 2011).                         Thus, at the second

stage   of     the    forum   non   conveniens       analysis,         the   movant    must

“provide      enough    information        to    enable    the      District    Court    to

balance the parties’ interests.”                  Fidelity Bank PLC v. Northern

Fox Shipping N.V., 242 F. App’x 84, 91 (4th Cir. July 13, 2007)

(unpublished) (per curiam) (quoting Piper Aircraft, 454 U.S. at

258).     Accord Saqui v. Pride Cent. Am., LLC, 595 F.3d 206, 213

(5th    Cir.    2010)     (movant        bears   burden        of    showing    that    the

relevant      factors    weigh      in    its    favor);       Wiwa    v.    Royal     Dutch

Petroleum Co., 226 F.3d 88, 100 (2d Cir. 2000) (same).

              Several considerations convince us that the district

court   did     not    hold   WPL    to    its    burden       of     proving   that    the

applicable factors weighed in favor of dismissal.                            First, while

a citizen’s forum choice is not dispositive, Piper Aircraft, 454

U.S. at 255 n.23, it is nonetheless true that when a domestic

plaintiff initiates litigation in its home forum, it is entitled

not only to the degree of deference generally accorded to a

plaintiff’s choice of forum, but to a “heightened deference”

based on its status as a citizen seeking a remedy in the courts

of its own country.           Adelson v. Hananel, 510 F.3d 43, 53 (1st

Cir. 2007).

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              As a result, a domestic plaintiff’s choice of its home

forum is presumptively convenient.                 Piper Aircraft, 454 U.S. at

255-56; Adelson, 510 F.3d at 53.                 Accordingly, “the standard of

deference for a U.S. plaintiff’s choice of a home forum permits

dismissal       only     when      the      defendant        ‘establish[es]         such

oppressiveness and vexation to a defendant as to be out of all

proportion to plaintiff’s convenience, which may be shown to be

slight or nonexistent.’”              Duha v. Agrium, Inc., 448 F.3d 867,

873-74 (6th Cir. 2006) (quoting Koster v. Lumbermens Mut. Cas.

Co.,    330    U.S.    518,     524   (1947)).         As    a    practical      matter,

therefore, “[i]n any balancing of conveniences, a real showing

of convenience by a plaintiff who has sued in his home forum

will normally outweigh the inconvenience the defendant may have

shown.”    Koster, 330 U.S. at 524.

              Unlike the district court, we see no reason to deprive

SAS of the benefit of this presumption on the facts of this

case.     See Adelson, 510 F.3d at 53.                 Moreover, we believe the

district court gave undue weight to the fact that the parties

were engaged in parallel U.K. litigation.                        While we decline to

posit   that    a     factor’s    absence       from   the   list    of   private    and

public interests explicitly enumerated in Gilbert eliminates it

from    the    realm      of     permissible       considerations,         see     Piper

Aircraft, 454 U.S. at 241 n.6, we nonetheless observe that the

mere presence of parallel litigation bears only marginally on

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the touchstone of the forum non conveniens analysis; namely,

convenience.      See Adelson, 510 F.3d at 54; Guidi v. Inter-Cont’l

Hotels Corp., 224 F.3d 142, 148 (2d Cir. 2000).                             The district

court’s stated concerns over “forum-shopping on an international

scale” are likewise only marginally relevant to the question of

convenience      to    the    parties.             Carijano,    643    F.3d     at    1228.

Instead, such an undue focus on the U.K. litigation in this case

risked “convert[ing] the analysis” from balancing the respective

conveniences “into a determination of which of the two pending

cases should go forward.”               Adelson, 510 F.3d at 54.

             The effect of the court’s insufficient regard for the

presumptive deference due to SAS’ choice of forum is compounded

by    its   consideration          of    the   applicable       public      and      private

interest factors in the almost utter absence of WPL’s production

of record evidence as to any of them.                    Of course, a case may be

dismissed for forum non conveniens only when the relevant public

and    private    interests         “strongly”        favor    an   alternate        forum.

Gilbert, 330 U.S. at 508; Jiali Tang, 656 F.3d at 246.                                 Thus

WPL, which held the burden of proof, was required to show that

the relevant factors weighed in its favor to such a degree that

they   surmounted       the   significant           presumption       already     weighing

against it.

             This,     on    any    plausible        reading   of     the   record,      WPL

failed to do.         Even before this court, WPL fails to identify any

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specific       record    evidence           pertaining     to     any     of        the    relevant

factors,       other    than      a   single       barebones      declaration             observing

that most of WPL’s employees and documents are located in the

U.K.     While a party seeking forum non conveniens dismissal is

not required to undertake “extensive investigation” in order to

demonstrate       that       its      private         interests        would     be       adversely

impacted by the continuance of the litigation,                                 Piper Aircraft,

454 U.S. at 258-59, a movant must nevertheless produce at least

some evidence demonstrating that its interests would be unduly

affected by the challenged litigation.                          See Carijano, 643 F.3d

at 1231; Duha, 448 F.3d at 877.                          Even now, WPL can point to

precious little in the record to support the district court’s

conclusions that “all or most of the evidence” would be found in

the U.K., and that there would be “myriad” U.K. witnesses whom

it     would    be     “cost[ly]”           to    transport       to     testify          in   North

Carolina, and our review of the record has uncovered nothing

more.     See also DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 30

(2d Cir. 2002) (noting that factors such as the location of

evidence and witness travel costs are hassles that, absent “a

satisfactory explanation,” do not demonstrate that “a trial in

the United States would be so oppressive and vexatious to [the

defendant]       as     to   be       out    of    all    proportion           to     plaintiffs’

convenience.”).



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          Particularly        when       ranged     against      the        strong

presumption in favor of SAS’ choice of its home forum, we are

constrained to conclude that the scant evidence pertaining to

the inconvenience that would be suffered by WPL as the result of

the North Carolina forum cannot suffice to meet WPL’s burden of

tipping the balance of conveniences “strongly” in WPL’s favor.

Gilbert, 330 U.S. at 508.           We can only conclude on this record

that WPL failed to bear its burden and that the district court

“committed   a   legal    error   by    failing   to   hold   [WPL]    to   [its]

burden of proof.”        DiRienzo, 294 F.3d at 30.         As a consequence,

the   district   court     abused      its   discretion    by   “striking      an

unreasonable balance of [the] relevant factors.”                Carijano, 643

F.3d at 1234 (quoting Ravelo Monegro v. Rosa, 211 F.3d 509, 511

(9th Cir. 2000)); Adelson, 510 F.3d at 54. *

          Accordingly, we reverse the judgment of the district

court and remand the case for proceedings not inconsistent with

this opinion and in SAS’s chosen forum.                We dispense with oral

argument because the facts and legal contentions are adequately

presented in the material before the court and argument will not

aid the decisional process.

                                                                 REVERSED AND
                                                                     REMANDED

      *
       Due to this conclusion, we need not reach                      the    other
arguments asserted by the parties in this appeal.



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