                            REVISED APRIL 3, 2013

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                           FILED
                                                                       February 19, 2013

                                       No. 12-10511                      Lyle W. Cayce
                                                                              Clerk

INNOVATION FIRST INTERNATIONAL, INC.,

               Plaintiff - Appellant

v.

ZURU, INC.,

               Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas


Before STEWART, Chief Judge, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Innovation First International, Inc. (“Innovation First”) brought this suit
for misappropriation of trade secrets against Zuru, Inc. (“Zuru”) in Texas state
court. After the case was removed to federal court, the district court dismissed
the case on forum non conveniens grounds. We AFFIRM.
                           FACTS AND PROCEEDINGS

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 12-10511

      Innovation First is a Texas corporation headquartered in Greenville, Texas
that develops robotic toys at facilities in Texas and China.         According to
Innovation First, one of its Chinese employees, Xiaoping Lu, worked at its
facility in China designing a robotic toy fish as part of its HEXBUG line of
products. Lu allegedly incorporated several of Innovation First’s trade secrets
into this design. After resigning from Innovation First in late August 2011, Lu
entered into an agreement in China with Zuru, a British Virgin Islands toy
manufacturer headquartered in China. Under the agreement, Zuru would
produce and market a robotic toy fish that Lu had allegedly designed.
      In early October 2011, Innovation First and Zuru both participated in the
Fall Toy Preview in Dallas, Texas. At this toy fair, Innovation First learned that
Zuru was marketing the robotic fish designed by Lu. Innovation First promptly
filed suit in Texas state court against Zuru, alleging that Zuru had
misappropriated Innovation First’s trade secrets because Zuru’s toy fish used
HEXBUG proprietary technology. Innovation First sought an injunction to
prevent Zuru from marketing any product incorporating the secret HEXBUG
technology, as well as damages. Zuru removed the case to federal court and filed
motions to dismiss for lack of personal jurisdiction and forum non conveniens.
      The district court found that it had personal jurisdiction over Zuru, but
nevertheless dismissed the case for forum non conveniens. It first determined
that China was an available and adequate alternate forum. Next, it recognized
that it owed deference to the plaintiff’s choice of forum, but found that the level
of deference was “somewhat lessened” because Innovation First is “an American
company that engages in international business.” Then it addressed each of the
relevant private and public interest factors.
      With regard to the private interest factors, it found that because “nearly
all witnesses and documents relating to the alleged trade secrets
misappropriation are located in China,” the relative ease of access to sources of


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                                  No. 12-10511

proof weighed in favor of dismissal. It also found that although it could not
compel the Chinese witnesses in this case, including Lu, to testify, Chinese
courts would have this power. Moreover, it found that because of the cost of
transporting both companies’ Chinese employees who were witnesses, as well as
any third party witnesses who would have to travel from China if the case was
tried in Texas, a Chinese forum would minimize the cost of obtaining willing
witnesses at trial. It thus determined that the ability to secure witnesses
favored trial in China. Finally, it found that other practical problems – the
expense of translating documents and employing interpreters – did not weigh in
favor of one forum or the other, because these problems would exist whether or
not such translation was from English to Chinese for a Chinese forum or
Chinese to English for the Texas court. Taking all the private interest factors
together, it concluded that Zuru had shown that they weighed in favor of a
Chinese forum.
      The court next turned to the public interest factors. Because neither party
contended that administrative difficulties favored one forum or the other, the
court found that this factor did not weigh in either direction. Similarly, neither
party argued that the law of one forum or the other would apply. Thus, neither
party suggested that the interest in having the trial in a forum familiar with the
law to be applied weighed for or against dismissal. The district court therefore
found that this factor did not tilt in either forum’s favor. And the court noted
that neither party addressed the related interest in avoiding a conflict with
foreign law, although it observed that this factor “would likely tilt in favor of
dismissal if in fact Chinese law were applied.” With respect to the local interest
in the resolution of controversies at home, the court found that “China has a far
greater interest in regulating the conduct of companies doing business in China.”
The court explained that:



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                                   No. 12-10511

      Lu worked for [Innovation First] exclusively in China; he allegedly
      misappropriated trade secrets in China; he signed an employment
      separation agreement in China; he negotiated and signed an
      agreement with Zuru in China. Zuru, a company whose primary
      place of business is in China, began marketing and producing new
      products using the allegedly misappropriated secrets in China.
      Given these facts, this matter can properly be characterized as a
      Chinese controversy.
It concluded that “[t]his factor weighs heavily in favor of dismissal.” It also
found that the final public interest factor, the burden of jury duty on citizens of
an unrelated forum, favored dismissal because a dispute that was based on trade
secrets that were allegedly misappropriated in China was a controversy that
arose in China. This finding weighed against imposing the burden of jury duty
on the people of a community that has “no relation to the litigation.”
      Based on its determination that an adequate alternative forum was
available and its consideration of each of the factors relevant to the forum non
conveniens analysis, the district court granted Zuru’s motion to dismiss.
Innovation First timely appeals.
                          STANDARD OF REVIEW
      “The standard of appellate review for a denial of a motion to dismiss for
forum non conveniens is narrow.” In re Air Crash Disaster Near New Orleans,
La. on July 9, 1982, 821 F.2d 1147, 1166 (5th Cir. 1987), vacated on other
grounds sub nom. Pan Am. World Airways, Inc. v. Lopez, 490 U.S. 1032 (1989).
The question “is not whether this Court . . . would as an original matter have
dismissed the action”; we “cannot reverse a district court’s granting of a motion
to dismiss for forum non conveniens unless the district court abused its
discretion.” Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 341 (5th Cir.
1999) (citation and internal quotation marks omitted).
      In ruling on a motion to dismiss for forum non conveniens, “[d]istrict
courts are constrained to follow [a specific] procedural framework.” McLennan


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                                         No. 12-10511

v. Am. Eurocopter Corp., Inc., 245 F.3d 403, 424 (5th Cir. 2001). The court’s
“task on appeal is merely to review the lower court’s decisionmaking process to
ensure compliance with this framework.” Id. (internal quotation marks and
citation omitted). Thus, “a district court abuses its discretion when it grants a
motion to dismiss without oral or written reasons[,] if it fails to address and
balance the relevant principles and factors,” Dickson Marine, 179 F.3d at 341,
or if its balancing of these factors is unreasonable, In re Air Crash, 821 F.2d at
1167.
                                       DISCUSSION
        Innovation First contends that the district court abused its discretion
when it granted Zuru’s motion to dismiss for forum non conveniens, arguing that
the district court failed to afford its choice of forum proper deference, made
inconsistent factual findings, and mis-weighed the relevant factors.1
        “The doctrine of forum non conveniens presupposes at least two forums
where the defendant is [amenable] to process and simply furnishes criteria for
choice between them.” Dickson Marine, 179 F.3d at 342. A defendant seeking
dismissal on this basis therefore must show that there is an alternate forum that
is both available and adequate. See McLennan, 245 F.3d at 424. Innovation
First does not challenge on appeal the district court’s determination that China
is an available and adequate alternative forum.
        Once the defendant establishes that there is a satisfactory alternate
forum, the district court must balance a defined set of private and public interest

        1
          Innovation First also argues that the district court abused its discretion by failing to
include a return jurisdiction clause in its dismissal order to allow Innovation First to reinstate
its suit in the district court, should the action become impossible in China. Although “the
district court is given the discretion to determine the conditions of dismissal,” Baris v. Sulpicio
Lines, Inc., 932 F.2d 1540, 1551 (5th Cir. 1991), upon granting a motion to dismiss for forum
non conveniens, “it must finally ensure . . . that if the defendant obstructs [suit] in the
alternative forum that the plaintiff may return to the American forum, In re Air Crash, 821
F.2d at 1166. Where, as here, defendants have agreed to submit to jurisdiction in the
alternate forum, dismissal without prejudice is sufficient to satisfy this requirement.

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                                  No. 12-10511

factors to determine whether dismissal is warranted. See Dickson Marine, 179
F.3d at 341-43. The focus of this inquiry is convenience. See id. at 342; see also
Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 429
(2007) (“A federal court has discretion to dismiss [when] . . . 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.” (citation, internal quotation marks, and alterations omitted)). The
private interest factors “relate primarily to the convenience of the litigants,” and
are “(1) the relative ease of access to sources of proof; (2) the availability of
compulsory process to secure the attendance of witnesses; (3) the cost of
attendance for willing witnesses; [and] (4) all other practical problems that make
trial of a case easy, expeditious and inexpensive.” Syndicate 420 at Lloyd’s
London v. Early Am. Ins. Co., 796 F.2d 821, 831 (5th Cir. 1986) (citing Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)). The public interest factors
concern whether the plaintiff’s chosen forum would be unnecessarily
burdensome to the court or the community. See In re Air Crash, 821 F.2d at
1154, 1165-66. They are “the administrative difficulties flowing from court
congestion; the local interest in having localized controversies decided at home;
the interest in having the trial of a diversity case in a forum that is at home with
the law that must govern the action; the avoidance of unnecessary problems in
conflict of laws, or in the application of foreign law; and the unfairness of
burdening citizens in an unrelated forum with jury duty.” McLennan, 245 F.3d
at 424 (citation and internal quotation marks omitted).
      Moreover, “the plaintiff’s choice of forum is entitled to great weight in the
balancing of factors, and unless the balance strongly favors the defendants, the
plaintiff’s choice of forum should not be overturned.” Syndicate, 796 F.2d at 830.
“When the plaintiff’s choice is not its home forum, however, [this weight] in the

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plaintiff’s favor ‘applies with less force,’” Sinochem, 549 U.S. at 430 (citation
omitted), because:
      When the home forum has been chosen, it is reasonable to assume
      that this choice is convenient. When the plaintiff is foreign,
      however, this assumption is much less reasonable. Because the
      central purpose of any forum non conveniens inquiry is to ensure
      that the trial is convenient, a foreign plaintiff’s choice deserves less
      deference.
Piper, 454 U.S. at 255-56. But neither the citizen’s choice of his home forum, see
In re Air Crash, 821 F.2d at 1164 n.26 (“[D]ismissal should not be automatically
barred when a plaintiff has filed suit in his home forum.” (citation and quotation
marks omitted)), nor any one private or public interest factor is dispositive, see
id. at 1163. Nevertheless, we have held that where the private interest factors
as a whole favor dismissal, a court may dismiss a case on forum non conveniens
grounds.      See    Empresa      Lineas     Maritimas     Argentinas,     S.A.   v.
Schichau-Unterweser, A.G., 955 F.2d 368, 376 (5th Cir. 1992) (“Given the
availability of an adequate forum in the Netherlands and the balance of private
interest factors favoring dismissal, the district court had no need to consider the
public interest factors.” (citation omitted)). Similarly, with regard to the public
interest factors, we have explained that:
      [E]ven when the private conveniences of the litigants are nearly in
      balance, a trial court has discretion to grant a forum non conveniens
      dismissal upon finding that retention of jurisdiction would be
      unduly burdensome to the community, that there is little or no
      public interest in the dispute or that foreign law will predominate
      if jurisdiction is retained.
In re Air Crash, 821 F.2d at 1165-66 (citation and quotation marks omitted).
      Innovation First argues that the district court failed to afford its choice of
forum proper deference for two reasons. First, it claims that the district court
failed to apply the standard announced by the Supreme Court in Koster v.
American Lumbermens Mutual Casualty Co., 330 U.S. 518 (1947). In that case,


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                                  No. 12-10511

the Court stated that a plaintiff should not be deprived of his home forum
unless there are facts showing “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” or that “make trial in the chosen forum inappropriate
because of considerations affecting the court’s own administrative and legal
problems.” Id. at 524. However, in Gulf Oil Corp. v. Gilbert, decided on the
same day as Koster, the Supreme Court laid out the private and public interest
factors that structure courts’ analysis of forum non conveniens. 330 U.S. 501,
507-09 (1947).    We have held that Koster and Gilbert “establish a single
‘balancing of conveniences’ approach,” which courts conduct by weighing the
factors specified in Gilbert. In re Air Crash, 821 F.2d at 1163 n.24. The district
court indisputably balanced the Gilbert factors, therefore it applied the correct
legal standard.
      Second, Innovation First cites to precedent from other circuits as well as
a 1955 case from this court, Burt v. Isthmus Development Co., 218 F.2d 353, 357
(5th Cir. 1955), for the proposition that, except in extreme circumstances, a
motion for dismissal due to forum non conveniens should not be granted when
an American plaintiff files suit in his home forum. However, Burt dealt not with
a citizen plaintiff who filed in his home forum, but with a New York plaintiff who
brought suit against a Texas corporation in the defendant’s home forum. See id.
at 354. The corporation nevertheless moved to dismiss on forum non conveniens
grounds because the law governing the contract at issue was Mexican law and
the transaction occurred in Mexico. See id. at 355. The court concluded that
under these inapposite circumstances, dismissal on forum non conveniens
grounds was not proper. See id. at 357-58.
      Furthermore, this circuit has more recently held that a district court in
Louisiana did not err when it dismissed Louisiana plaintiffs’ case against a
Swiss corporation on forum non conveniens grounds because the private interest

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factors weighed in favor of a Swiss forum – even though “the district court
concluded that the public interest factors might point slightly toward Louisiana
as the appropriate forum.” Dickson Marine, 179 F.3d at 334-35, 343. In Dickson
Marine, the district court found that the transaction was negotiated in
Switzerland, most of the evidence was in Switzerland, and process could be
compelled by Swiss courts. See id. at 343. This court therefore agreed with the
district court that the private interest factors “weigh[ed] heavily in favor of
Switzerland as the most convenient forum.” Id. (emphasis added).
      The facts of this case are quite similar to those in Dickson Marine. The
district court recognized that Lu allegedly designed the toy fish at Innovation
First’s facility in China; Lu negotiated an agreement with Zuru in China; and
the robotic fish produced according to that agreement was developed in China.
The district court also reasonably concluded that most of the records and
witnesses are located in China and their production or testimony can be
compelled by Chinese courts. Comparing the facts of this case to those in
Dickson Marine, we cannot conclude that the district court here unreasonably
determined that the private interest factors weighed “strongly” in favor of
dismissal.
      Innovation First also contends that the district court’s ruling on forum non
conveniens is inconsistent with its findings on personal jurisdiction. Specifically,
the district court found that it could exercise personal jurisdiction over Zuru
because any burden on Zuru from litigating in Texas would not be “unreasonable
or unfair,” and Texas would “likely provide Plaintiff the greatest level of
convenience.” Innovation First argues that these findings preclude the district
court from concluding that this case meets the standard for dismissal on forum
non conveniens grounds.
      Innovation First misconstrues the forum non conveniens analysis. While
determination of personal jurisdiction focuses on fairness, forum non conveniens

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addresses the practical concern of convenience. See Dickson Marine, 179 F.3d
at 342; see also Syndicate, 796 F.2d at 831 (“In a nutshell, the practical problems
of trying this dispute in Louisiana are such that the proceeding is likely to prove
difficult, lengthy, and expensive. Such a result cannot satisfy Piper’s instruction
that the trial of a case should proceed in the forum where it will prove ‘easy,
expeditious and inexpensive.’” (quoting Piper, 454 U.S. at 241 n.6)). While it
may be fair to hale Zuru into court in Texas – the Constitution is not offended
– it may nevertheless be so inconvenient to require Zuru to defend itself against
a particular claim in Texas that, as a practical matter, a district court may
conclude that dismissal is warranted. Under Innovation First’s understanding,
no case could ever be dismissed for forum non conveniens: as soon as a district
court determines that it is fair to exercise jurisdiction over a defendant, that
defendant will, according to Innovation First, not be able to satisfy the standard
that the forum is unnecessarily (or unfairly) burdensome. See In re Air Crash,
821 F.2d at 1164 n.26. This position is not supported by logic or precedent.
       The remainder of Innovation First’s argument consists of challenging how
the district court weighed the relevant private and public interest factors. It
invites us to disregard the abuse of discretion standard and re-weigh these
factors. It claims that the core of the tort took place in Texas; it suggests that
more of the sources of proof are located in Texas than the court admitted; it
argues that the district court would not find it necessary to compel any witnesses
because they are all employees or allies of the two parties; it contends that
technological advances obviate the need to consider the burden of transporting
documents;2 and it asserts that the district court assigned inordinate weight to
the cost of witness travel because Zuru sends its sales representatives to Texas,

       2
         Cf. In re Volkswagen of Am., Inc., 545 F.3d 304, 316 (5th Cir. 2008) (“That access to
some sources of proof presents a lesser inconvenience now than it might have absent recent
developments [in copying technology and information storage] does not render this factor
superfluous.”).

                                             10
                                        No. 12-10511

depositions could be used in lieu of live testimony, and, in any event, Zuru has
the financial resources to fly witnesses to Texas.
       Addressing the public interest factors, Innovation First argues that the
district court should have weighed Texas’s interest in protecting its companies
from trade secret misappropriation more heavily. Although this argument is
persuasive, the district court considered the state’s interest in deciding the
controversy at home, and given that the bulk of the dispute occurred in China,
we do not believe that its conclusion on this factor – or any of the others – was
unreasonable.3 In short, we decline Innovation First’s invitation to “substitute[
our] own judgment for that of the District Court.” Piper, 454 U.S. at 257.
                                      CONCLUSION
       The district court applied the proper legal framework when it addressed
Zuru’s motion to dismiss for forum non conveniens, considered all the relevant
private and public interest factors, and balanced them reasonably. Therefore,
the district court did not abuse its discretion and we AFFIRM its decision to
dismiss this case.




       3
          See Syndicate, 796 F.2d at 831-32 (“Although there is a ‘local interest in having local
controversies decided at home,’ this case can hardly be characterized as a local controversy.
The primary claims in this litigation arise from the contention of a British insurance syndicate
– Syndicate 420 – that it should not be liable on reinsurance issued to an Alabama corporation
– Early American – and a Delaware corporation – World. These claims gave rise, in turn, to
direct actions by those parties against the E & O Underwriters, a group of predominantly
foreign insurers. Granted, the underlying risks for which the reinsurance was issued are
located in Louisiana, but that fact does not make this case a ‘local controversy.’ We simply
discern no substantial interest on the part of Louisiana in retention of this litigation in the
Eastern District.”).


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