                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2008

Windt v. Qwest Comm Intl Inc
Precedential or Non-Precedential: Precedential

Docket No. 06-4662




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                                      PRECEDENTIAL


     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                    No. 06-4662
                    No. 06-4808
                   _____________

         MARCEL WINDT; E.T. MEIJER,
       IN THEIR CAPACITY AS TRUSTEES
        IN BANKRUPTCY FOR KPNQwest
                  N.V., et al,


                               Appellants at 06-4662/
                               Cross-Appellees at 06-4808

                          v.

QWEST COMMUNICATIONS INTERNATIONAL, INC.;
   JOHN A. MCMASTER; JOSEPH P. NACCHIO;
           ROBERT S. WOODRUFF,

                           Appellees at 06-4662/
                           Cross-Appellants at 06-4808
                   _____________

     Appeal from the United States District Court
            for the District of New Jersey
                  D.C. No. 2:04-cv-03026
District Judge: Honorable Garrett E. Brown, Jr., Chief Judge
                      ____________

                  Argued March 11, 2008
                     ____________

 Before: FUENTES, CHAGARES and ALDISERT, Circuit
                        Judges
               (Filed: June 10, 2008)


Richard McMillan, Jr.
Clifton S. Elgarten (Argued)
David L. Haga
Daniel W. Wolff
CROWELL & MORING, LLP
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2595

Melvyn H. Bergstein
WALDER, HAYDEN & BROGAN
5 Becker Farm Road
Roseland, NJ 07068

      Counsel for Appellants/Cross-Appellees

James P. Denvir
Jonathan Sherman (Argued)
BOIES, SCHILLER & FLEXNER, LLP
5301 Wisconsin Avenue, N.W.

                             2
Washington, D.C. 20015
Thomas R. Curtin
George C. Jones
GRAHAM CURTIN, A Professional Association
4 Headquarters Plaza
P.O. Box 1991
Morristown, NJ 07962-1991

    Counsel for Appellee/Cross-Appellant Qwest
Communications International, Inc.

Andrew T. Berry
Joseph T. Boccassini
James C. Sheil
MCCARTER & ENGLISH, LLP
Four Gateway Center
100 Mulberry Street
Newark, NJ 07102-4096

    Counsel for Appellees/Cross-Appellants John A.
McMaster and Robert S. Woodruff

Herbert J. Stern
Jeffrey Speiser
Joel M. Silverstein
STERN & KILCULLEN, LLC
75 Livingston Avenue
Roseland, NJ 07068

      Counsel for Appellee/Cross-Appellant Joseph P.
Nacchio

                            3
Ira A. Finkelstein
HARNIK WILKER & FINKELSTEIN LLP
Olympic Tower
645 Fifth Avenue, Suite 703
New York, NY 10022-5937

    Counsel for Appellee/Cross-Appellant John A.
McMaster

Jeffrey Gross
COOLEY GODWARD KRONISH LLP
The Grace Building
Avenue of the Americas
New York, NY 10036-7798

     Counsel for Appellee/Cross-Appellant Robert S.
Woodruff




                OPINION OF THE COURT


ALDISERT, Circuit Judge

       Marcel Windt and E.T. Meijer, in their capacity as
trustees in bankruptcy for KPNQwest N.V. (“Trustees”),
appeal from the dismissal of their amended complaint on
forum non conveniens grounds by the United States District
Court for the District of New Jersey. The Trustees asserted

                              4
claims against Qwest Communications International, Inc.
(“Qwest”), Joseph P. Nacchio, Robert A. McMaster and
Robert S. Woodruff (collectively referred to as “Defendants”)
arising from the bankruptcy of a Dutch company, KPNQwest
N.V. (“KPNQwest”). Specifically, we must decide whether
the District Court abused its discretion in assigning the
Trustees’ choice of forum a low degree of deference, whether
the District Court abused its discretion in balancing the public
and private interest factors implicated in this case, and
whether the District Court abused its discretion in determining
that litigation in the Trustees’ chosen forum was oppressive or
vexatious to the Defendants out of all proportion to the
Trustees’ convenience. For the reasons that follow, we will
affirm the District Court’s dismissal of the Trustees’ amended
complaint on forum non conveniens grounds.

                               I.

                              A.

       In 1999, Qwest and KPN B.V., a wholly-owned
subsidiary of Dutch multimedia company Koniklijke KPN
N.V., engaged in a joint venture and formed KPNQwest.
KPNQwest was organized as a Dutch corporation, had its
principal place of business in Hoofddorp, Netherlands, and
was established to construct a European fiber optics
telecommunications network. By 2002, KPNQwest was
insolvent and filed for bankruptcy in a Dutch court.

                               5
       As a result of the bankruptcy filing, Windt and Meijer
were appointed by the Dutch bankruptcy court as trustees in
bankruptcy for KPNQwest.1 Pursuant to their official duties,
the Trustees investigated the cause of KPNQwest’s
bankruptcy and brought this lawsuit on behalf of KPNQwest’s
bankruptcy estate. In June 2004, the Trustees filed a
complaint in the United States District Court for the District
of New Jersey. According to the complaint, the Defendants
deceived KPNQwest’s Supervisory Board about the financial
solvency of KPNQwest in an effort to gain control of
KPNQwest and manipulate its business to suit their
objectives. The Trustees’ complaint detailed a pattern of
fraud, mismanagement and accounting improprieties that
resulted in the ultimate failure of KPNQwest. Specifically, the
complaint alleged one claim under the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-
1968, and one claim of mismanagement and breach of duty
based upon violations of the Dutch Civil Code.

      The Trustees’ complaint named Qwest, Nacchio,
McMaster and Woodruff as defendants. Qwest is a Delaware
corporation with its principal place of business in Colorado.
Nacchio, a New Jersey resident, previously served as


      1
        Originally, J.C. van Apeldoorn and E.T. Meijer were
appointed as the trustees of the KPNQwest bankruptcy estate.
Following his appointment, van Apeldoorn became ill, and
Marcel Windt was substituted as a trustee.

                              6
Chairman and Chief Executive Officer of Qwest and as
Chairman of the Supervisory Board of KPNQwest.
McMaster, also a New Jersey resident, previously served as
Qwest’s Executive Vice President of International Business
and was named by the Supervisory Board as KPNQwest’s
Chief Executive Officer. Woodruff, a Colorado resident,
previously served as Chief Financial Officer of Qwest and
was a member of KPNQwest’s Supervisory Board.

        On October 4, 2004, the Defendants moved to compel
arbitration of the Trustees’ claims. The motion was denied by
a magistrate judge on June 16, 2005, and the Defendants
appealed the denial to the District Court. On February 21,
2006, while the appeal to the District Court concerning the
denial of the motion to compel arbitration was pending, the
Defendants filed a motion to dismiss the Trustees’ complaint
on forum non conveniens grounds. On August 7, 2006, the
District Court affirmed the magistrate judge’s denial of the
Defendants’ motion to compel arbitration.2

      On September 20, 2006, the Trustees filed an amended


      2
         The District Court’s denial of the motion to compel
arbitration is the subject of the Defendants’ cross-appeal.
Because we hold that the District Court did not abuse its
discretion in dismissing the Trustees’ amended complaint on
forum non conveniens grounds, we will dismiss the cross-appeal
as moot.

                              7
complaint that asserted the same essential facts and claims as
their original complaint. The Defendants then notified the
District Court that they would file a new motion to dismiss the
amended complaint. The District Court deemed the prior
motion to dismiss to be pending and, on October 17, 2006,
dismissed the amended complaint on forum non conveniens
grounds. The Trustees now appeal the District Court’s
dismissal of their amended complaint.

                               B.

        In addition to this proceeding, other legal proceedings
related to KPNQwest and the Defendants are currently
pending, or were pending at the time the Trustees filed the
instant complaint. Three lawsuits stemming from Qwest’s
relationship with KPNQwest have been filed in various U.S.
state and federal courts. Taft v. Ackermans, No. 02-CV-7951
(S.D.N.Y.), was a putative securities class action lawsuit filed
in the United States District Court for the Southern District of
New York and settled in early 2006. Grand v. Nacchio, No.
C-2002-5348 (Pima County Superior Ct.), is a securities opt-
out action filed in 2002 in Arizona state court that involved
the purchase of 285,000 shares of KPNQwest stock by a
living trust. The trial court in Grand granted partial summary
judgment in favor of the defendants. The plaintiffs voluntarily
dismissed the remainder of their claims and appealed.
Approximately one month after the District Court’s dismissal
in this case, the Arizona appellate court affirmed the trial

                               8
court in part, reversed in part, and remanded the case to the
trial court for further proceedings. Grand v. Nacchio, 147
P.3d 763 (Az. Ct. App. 2006). Subsequent to the filing of this
lawsuit, another securities opt-out action, Appaloosa
Investment Ltd. P’ship I v. Qwest Commc’ns Int’l, Inc., No.
05-CV-5674 (S.D.N.Y.), was filed in the United States
District Court for the Southern District of New York and is
pending in that court.

        Litigation and other proceedings related to KPNQwest
also arose in the Netherlands following the filing of the
Trustees’ complaint in New Jersey. On August 23, 2005,
several Dutch KPNQwest shareholders petitioned the
Enterprise Chamber, a branch of the Civil Court in
Amsterdam with jurisdiction over corporate mismanagement
claims, to begin an inquiry into the cause of KPNQwest’s
bankruptcy. The Enterprise Chamber granted the request, and
all of the Defendants named in this lawsuit are involved in the
investigatory proceeding before the Enterprise Chamber.

        Several weeks before the District Court dismissed this
case, Cargill Financial sued three of the Defendants named by
the Trustees and several other parties related to the formation
and/or operation of KPNQwest in the Netherlands. In its
complaint, Cargill Financial asserts that three of the
defendants named here and others fraudulently procured
credit in an attempt to avoid the bankruptcy from which this
litigation arises.

                               9
        Insurance litigation is also pending in the Netherlands.
The insurance cases involve all of the parties to this lawsuit
and concern the insurers’ nullification of directors’ and
officers’ insurance policies covering various individuals
associated with KPNQwest. In these cases, the insurers allege
that the directors’ and officers’ insurance policies were
fraudulently procured through the same mismanagement
alleged in this lawsuit. In addition, KPNQwest’s bankruptcy
proceedings are still ongoing in the Dutch courts.

                               II.

        The District Court had jurisdiction in this case pursuant
to 28 U.S.C. § 1331 and § 1367. We have jurisdiction over
final orders of the District Court pursuant to 28 U.S.C. §
1291. Our review in this case, however, is limited.

        “[T]he district court is accorded substantial flexibility
in evaluating a forum non conveniens motion, and ‘[e]ach
case turns on its facts.’” Van Cauwenberghe v. Biard, 486
U.S. 517, 529 (1988) (citations omitted). Furthermore, “[t]he
forum non conveniens determination is committed to the
sound discretion of the trial court.” Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 257 (1981). This Court reviews a
district court’s dismissal of a complaint on forum non
conveniens grounds for abuse of discretion. Id.; Lony v. E.I.
Du Pont de Nemours & Co. (“Lony I”), 886 F.2d 628, 631 (3d
Cir. 1989).

                               10
        The district court’s determination “may be reversed
only when there has been a clear abuse of discretion; where
the court has considered all relevant public and private
interest factors, and where its balancing of these factors is
reasonable, its decision deserves substantial deference.” Piper
Aircraft Co., 454 U.S. at 257. Thus, “we do not perform a de
novo resolution of forum non conveniens issues.” Lacey v.
Cessna Aircraft Co. (“Lacey I”), 862 F.2d 38, 43 (3d Cir.
1988). “[A] district court abuses its discretion in a forum non
conveniens analysis when it fails to consider adequately and
to determine the amount of deference due the foreign
plaintiff’s choice of forum or when it clearly errs in weighing
the factors to be considered.” Lony I, 886 F.2d at 632
(internal citations omitted).

                               III.

       The Supreme Court has articulated precepts applicable
in forum non conveniens cases. Although “a plaintiff’s choice
of forum should rarely be disturbed,” Piper Aircraft Co., 454
U.S. at 241, a federal court “may resist imposition upon its
jurisdiction even when jurisdiction is authorized by the letter
of a general venue statute.” Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 507 (1947). When an alternative forum has
jurisdiction to hear the case, and when trial in the plaintiff’s
chosen forum would “establish . . . oppressiveness and
vexation to a defendant . . . out of all proportion to plaintiff’s
convenience,” or when the “chosen forum [is] inappropriate

                                11
because of considerations affecting the court’s own
administrative and legal problems,” the court may, in the
exercise of its sound discretion, dismiss the case. Koster v.
(Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947).

        To guide the trial court’s exercise of discretion and its
determination of oppressiveness and vexation, the Supreme
Court has prescribed a balancing of private interest factors
affecting the convenience of the litigants and public interest
factors affecting the convenience of the forum. See Gulf Oil,
330 U.S. at 508-509. Factors pertaining to the private interests
of the litigants include:

       the relative ease of access to sources of proof;
       availability of compulsory process for
       attendance of unwilling, and the cost of
       obtaining attendance of willing, witnesses;
       possibility of view of premises, if view would
       be appropriate to the action; and all other
       practical problems that make trial of a case
       easy, expeditious and inexpensive.

Id. at 508. Public interest factors bearing on the inquiry
include 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
state law that must govern the case”; the avoidance of

                               12
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. Id. at 508-509.

         Applying these precepts to a particular case, when
considering a motion to dismiss on forum non conveniens
grounds, a district court must first determine whether an
adequate alternative forum can entertain the case.3 If such a
forum exists, the district court must then determine the
appropriate amount of deference to be given the plaintiff’s
choice of forum. Once the district court has determined the
amount of deference due the plaintiff’s choice of forum, the
district court must balance the relevant public and private
interest factors. If the balance of these factors indicates that
trial in the chosen forum would result in oppression or
vexation to the defendant out of all proportion to the
plaintiff’s convenience, the district court may, in its
discretion, dismiss the case on forum non conveniens
grounds.




       3
         In this case, the District Court determined that the
Netherlands provided an adequate alternative forum for the
resolution of this dispute. Windt v. Qwest Commc’ns Int’l, Inc.,
___ F. Supp. 2d ___, 2008 WL 877981, *7 (D.N.J. Mar. 28,
2008) (reissued for publication). The Trustees do not contest this
finding, so we will not address this prong of the forum non
conveniens analysis.

                                13
                              IV.

        We first consider whether the District Court abused its
discretion in assigning the Trustees’ choice of forum a low
degree of deference. Ordinarily, a strong presumption of
convenience exists in favor of a domestic plaintiff’s chosen
forum, and this presumption may be overcome only when the
balance of the public and private interests clearly favors an
alternate forum. Piper Aircraft Co., 454 U.S. at 255. “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.” Id. at 256.
Foreign plaintiffs, however, may bolster the amount of
deference due their choice by making a strong showing of
convenience. Lony I, 886 F.2d at 634. Thus, in performing its
forum non conveniens inquiry in a case filed by a foreign
plaintiff, the “district court must assess[, and articulate,]
whether the considerable evidence of convenience has . . .
overcome any reason to refrain from extending full deference
to the foreign plaintiff’s choice.” Id.

                               A.

      After considering the evidence of convenience to the
Trustees in filing their amended complaint in the District of
New Jersey, the District Court accorded the foreign Trustees a
low degree of deference:

                               14
       It is illogical for a bankruptcy trustee to assert
       that it would be more convenient to bring an
       action thousands of miles away, while this
       trustee: (a) has to play a part in the related
       bankruptcy proceedings in his home forum, and
       (b) has his defendants already brought into his
       home forum on two other actions which are
       nearly identical in nature to the action the
       trustee desires to pursue, and in one of which
       the trustee has already been ordered to appear.
       Since one can hardly perceive any convenience
       in having multiple massive litigations on both
       sides of the Atlantic, this Court discerns little
       evidence of convenience to Plaintiffs in
       Plaintiffs’ decision to file this action with this
       Court and, thus, accords Plaintiffs’ forum
       selection a low degree of deference.

Windt v. Qwest Commc’ns Int’l, Inc., ___ F. Supp. 2d ___,
2008 WL 877981, *6 (D.N.J. Mar. 28, 2008) (reissued for
publication).

       The Trustees contend that their filing of this action in
the Defendants’ home forum strongly supports a finding that
their choice was a convenient one, and thus they should be
accorded the same deference as a domestic plaintiff. The
Trustees direct our attention to our statement in Lony I:



                               15
The foreign plaintiff is suing the defendant in the latter’s
home forum where the latter’s corporate headquarters,
headquarters of the division in question, and research
laboratories are located. That in itself has considerable weight
in showing that the plaintiff[’]s choice of forum was based on
convenience. In addition, the plaintiff has taken pains to show
that much of the evidence it needs to establish liability is
located in the forum it chose, and the conduct that caused the
alleged injury issued from [the chosen forum].

Lony I, 886 F.2d at 634.

                               B.

        In determining the amount of deference due the
Trustees’ choice of forum, the District Court properly
considered the particular circumstances of this litigation,
including the Trustees’ and Defendants’ connections with
New Jersey and the pending litigation in the Netherlands. The
facts of this case differ from those of Lony I, in which the
plaintiff, a German sole proprietorship, filed suit in the
District of Delaware against a Delaware corporation that had
its principal place of business in Delaware. Id. at 629-630.
Although two individual defendants in this case are residents
of New Jersey, that state is not the home forum of the
corporate defendant or another individual defendant named in
the Trustees’ amended complaint. There is also no indication
that evidence is concentrated in New Jersey, nor is there an

                               16
indication that a substantial amount of conduct giving rise to
the instant dispute occurred in New Jersey. Thus, the forum
chosen by the plaintiffs in Lony I had a more substantial
relationship to the parties and events involved in that case
than New Jersey has to the parties and events involved in this
case. In the context of this particular issue, therefore, Lony I
is not a proper analogue.

         Furthermore, the Trustees are Dutch residents acting as
representatives of an insolvent Dutch corporation. Beyond
this litigation, the Trustees have no connections to New Jersey
in their representative or personal capacities. At the time the
Trustees brought this suit, they were already immersed in the
Dutch bankruptcy proceedings involving KPNQwest.
Considering the particular circumstances of this case, we are
satisfied that the District Court did not abuse its discretion in
according the Trustees’ choice of forum a low degree of
deference.

                               C.

        In this case, two defendants were located in New
Jersey and two were located in Colorado. The Trustees argue
that these circumstances should not affect this Court’s
conclusion as to the convenience of filing in the District of
New Jersey because “the forum non conveniens inquiry looks
to contacts with the United States, not the state where the
federal court is located.” Appellants’ Br. at 34 n.17. The

                               17
Trustees misconstrue the flexible forum non conveniens
analysis. Although the relationship between the United States
and a case generally should be considered, this does not mean
that the relationship between the local federal court district
and the case should not. Indeed, considerations of local
inconvenience may be so strong as to a dwarf considerations
of national convenience.

        This comment warrants a caveat. Often, defendants,
evidence and witnesses will be spread throughout numerous
districts. It would be problematic if granting a motion to
dismiss for forum non conveniens, based on local
considerations, precluded a plaintiff from filing the suit in
another, convenient district. Thus, the conclusion we reach in
this case does not necessarily mean that this action may not be
maintainable in another federal district. Whether an action
dismissed by one federal court on forum non conveniens
grounds is maintainable in another federal court would
depend on various factors, including whether the possibility
of a transfer under 28 U.S.C. § 1404(a) was considered by the
District Court, see Mizokami Bros. of Arizona, Inc. v. Mobay
Chemical Corp., 660 F.2d 712, 716-717 (8th Cir. 1981)
(declining to apply res judicata or law of the case doctrine to a
dismissal by a different district court on forum non
conveniens grounds, when the other court did not consider
whether transfer was appropriate), whether differences
between the districts made one more convenient, see
Pastewka v. Texaco, Inc., 565 F.2d 851, 854 (3d Cir. 1977)

                               18
(holding that a prior forum non conveniens dismissal in
federal court in New York barred relitigation in federal court
in Delaware where the plaintiffs conceded that both the
objective legal criteria and the material facts underlying the
application of those criteria were identical), and whether the
first federal court grounded its decision on national or local
considerations, see Villar v. Crowley Mar. Corp., 990 F.2d
1489, 1498 (5th Cir. 1993), abrogated on other grounds by
Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998)
(affirming the application of res judicata to a different court’s
dismissal on forum non conveniens grounds when the other
court “found that no forum in the United States was
convenient”).

                               V.

        Although the Trustees’ choice of forum was accorded
a low degree of deference, the Defendants must nevertheless
demonstrate that a forum non conveniens dismissal is
warranted. To determine whether the Defendants adequately
demonstrated that dismissal was warranted, we turn to the
District Court’s analysis of the oppression and vexation prong
of the forum non conveniens inquiry. When an alternative
forum has jurisdiction to hear the case, and when trial in the
plaintiff’s chosen forum would “establish . . . oppressiveness
and vexation to a defendant . . . out of all proportion to
plaintiff’s convenience,” or when the “chosen forum [is]
inappropriate because of considerations affecting the court’s

                               19
own administrative and legal problems,” the district court
may, in the exercise of its sound discretion, dismiss the case.
Koster, 330 U.S. at 524. To guide its exercise of discretion,
the district court must balance the relevant public and private
interest factors and determine whether the balance of these
factors favors dismissal of the case.

        A defendant seeking dismissal on forum non
conveniens grounds must show that the balance of the public
and private factors “tips decidedly in favor of trial in the
foreign forum.” Lacey v. Cessna Aircraft Co. (“Lacey II”),
932 F.2d 170, 180 (3d Cir. 1991). “If, when added together,
the relevant private and public interest factors are in equipose,
or even if they lean only slightly toward dismissal, the motion
to dismiss must be denied.” Id. In this case, the District Court
decided that the balance tipped decidedly toward trial in the
Netherlands. We now review its analysis.

                               A.

                               1.

       We first examine the local nature of the dispute and the
public interest in resolving local disputes locally. The District
Court observed:

       [T]he case at bar concerns the allegations of
       fraud and mismanagement of a Dutch business

                               20
      entity by a board member and executives of that
      corporation, and by that corporation’s
      controlling holder. The fact that two of these
      defendants are domiciled in the state of New
      Jersey does not transform the case into a “local
      dispute,” nor can the facts that four Board
      meetings took place somewhere in the United
      States and Defendants, while being present in
      the United States, took part in five international
      conference calls, cannot transform the case into
      an “American” dispute.

Windt, ___ F. Supp. 2d at ___, 2008 WL 877981, at *8
(emphases in original).

        We agree with the District Court that the Trustees’
complaint does not raise a local dispute. The Trustees’
amended complaint alleges fraud and mismanagement
perpetrated on a Dutch company by executives, board
members and a corporate shareholder of that Dutch company.
Although two of the defendants are residents of New Jersey,
there are no allegations that actions or events occurring in
New Jersey gave rise to the fraud and mismanagement at
issue in this case. Moreover, without a dispute local to the
community of New Jersey, there is little public interest in
subjecting that community to the burdens of jury service. Cf.
Dahl v. United Techs. Corp., 632 F.2d 1027, 1032 (3d Cir.
1980) (“The only contact that Delaware has with this case is

                              21
that it is [the defendant’s] state of incorporation. Indeed, [the
defendant’s] principal place of business is in Connecticut. We
therefore conclude that the commitment of Delaware judicial
time and resources to this case is not justified by any nexus
Delaware has with what is essentially a Norwegian case.”).

        In cannot be denied that the Netherlands has a
substantial interest in resolving this dispute as it involves the
alleged mismanagement of a Dutch company by Supervisory
Board members and executives of that Dutch company.
Indeed, Dutch shareholders of KPNQwest have successfully
petitioned the Enterprise Chamber in the Netherlands to
investigate the alleged mismanagement of the company. In
light of New Jersey’s lack of associations with this case and
the Netherlands’ substantial associations with this case, the
District Court reasonably concluded that the non-local nature
of the dispute and the burdens of jury service on the local
community in resolving this non-local dispute favored
dismissal of the Trustees’ amended complaint.

                                2.

       We next examine the necessity of applying foreign law
and avoiding problems in its application. The Trustees assert
one claim under the U.S. RICO statute and one claim of
mismanagement and breach of fiduciary duty, implicating
eleven provisions of the Dutch Civil Code. Federal courts
have refused to afford RICO claims special treatment in

                                22
forum non conveniens inquiries and have found dismissal on
this basis proper in cases involving RICO claims. See, e.g.,
Gemini Capital Group v. Yap Fishing Corp., 150 F.3d 1088
(9th Cir. 1998); Alfadda v. Fenn, 159 F.3d 41 (2d Cir. 1998);
Republic of Panama v. BCCI Holdings (Luxemburg) S.A.,
119 F.3d 935 (11th Cir. 1997); Kempe v. Ocean Drilling &
Exploration Co., 876 F.2d 1138 (5th Cir. 1989). Were this
case to remain in New Jersey, the District Court would be
required to examine and apply eleven provisions of the Dutch
Civil Code. On this basis, we cannot say that the District
Court was unreasonable in concluding that avoiding problems
in the application of foreign law favored dismissal.

                                3.

       Although we recognize that the United States has an
interest in redressing wrongful conduct engaged in by a U.S.
corporation and American executives, this general national
interest does not outweigh the limited connection between
New Jersey and this dispute. See Dahl, 632 F.2d at 1033
(“This lawsuit has little connection to Delaware and we
believe the general national interest in aircraft regulation is
not sufficient by itself to warrant retention of jurisdiction over
an action when the other factors favor dismissal.”); Allstate
Life Ins. Co. v. Linter Group Ltd., 994 F.2d 996, 1002 (2d
Cir. 1993) (“While . . . United States courts have an interest in
enforcing United States securities laws, this alone does not
prohibit them from dismissing a securities action on the

                               23
ground of forum non conveniens.”). Considering all of the
public interest factors implicated in this case, the District
Court did not abuse its discretion in determining that the
balance of these factors favored dismissal.

                               B.

                               1.

       Turning to the private interest factors, we first examine
the ease of access to evidence required in this case. Based
upon the parties’ representations to this Court and to the
District Court, it appears that the physical evidence in this
case consists of thousands of boxes of documents. The
Trustees do not challenge the District Court’s finding that
“[t]he expenses and complexity associated with such
production and examination appear[] to be the same
regardless of whether the case is litigated in New Jersey or in
Amsterdam.” Windt, ___ F. Supp. 2d at ___, 2008 WL
877981, at *9 n.24.

                               2.

        We next examine the cost for willing witnesses to
attend trial and the methods available for compelling the
attendance of unwilling witnesses. Many of the witnesses
required in this case are already embroiled in investigations
and litigation in the Netherlands related to the insolvency of

                               24
KPNQwest. Thus, transportation and lodging costs may be
saved by litigating this dispute in the Netherlands, where the
presence of many witnesses relevant to this case is already
required. Although the Trustees presented affidavits to the
District Court identifying witnesses residing in the United
States, almost all of the witnesses reside outside of New
Jersey. The Defendants also presented affidavits to the
District Court stating that many of the witnesses and
potentially responsible non-parties reside in Europe. We
conclude that the District Court reasonably determined that
the logistics associated with obtaining the presence of willing
witnesses favored dismissal of the Trustees’ amended
complaint.

        Regarding compelling the presence of unwilling
witnesses, the District Court found the procedures available in
the Dutch courts adequate to ensure their presence. It
determined that the Trustees “would have no more problem in
compelling unwilling United States and European witnesses
to take part in Dutch proceedings than what Defendants might
face in trying to compel unwilling Netherlands-based or other
European witnesses to take part in this Court’s proceedings.”
Id. at ___, *11.

       Although we do not believe this conclusion is
unreasonable, the District Court erroneously noted that this
consideration favored dismissal. Id. at ___, *10. As the
District Court considered the burdens of compelling unwilling

                              25
witnesses to attend trial to be equal in New Jersey and the
Netherlands, it should not have considered this particular
factor as one favoring dismissal. Cf. Lony I, 886 F.2d at 635
(“When the [district] court found the private interest factors to
be ‘at equipose’ . . . it should have concluded that they
weighed in favor of retaining jurisdiction, not that they tipped
‘toward dismissal.’”). As this portion of the forum non
conveniens inquiry balances and weighs the relevant interests,
however, we cannot say that the District Court abused its
discretion when it determined that the totality of the private
interest factors favored dismissal.

                               3.

        We must also consider other factors that lead to the
expeditious and efficient resolution of the litigation. One such
factor is the Defendants’ stated desire to pursue contribution
claims against potentially responsible third parties in the
Netherlands and other European countries. The District Court
properly considered these claims and found that the
Defendants’ desire to pursue these claims favored dismissal.
The Defendants’ pursuit of contribution claims would result
in additional, related litigation in the Netherlands, and
resolving all of these matters in the Netherlands would lead to
the most efficient and expeditious resolution of this dispute.
See Piper Aircraft Co., 454 U.S. at 259 (“It is true, of course,
that if [the defendants] were found liable after a trial in the
United States, they could institute an action for indemnity or

                               26
contribution against [related third] parties in Scotland. It
would be far more convenient, however, to resolve all claims
in one trial.”). Thus, the District Court properly decided that
the Defendants’ pursuit of contribution claims in the
Netherlands favored dismissal of the Trustees’ amended
complaint.

       As it appears that the District Court properly and
thoroughly considered the particular circumstances presented
by this litigation, we cannot conclude that the District Court
abused its discretion in determining that the balance of the
public and private interest factors clearly favored dismissal.

                              VI.

       Guided by the aforementioned considerations, we will
decide whether the District Court abused its discretion in
finding that continuing with this litigation in New Jersey
would be oppressive or vexatious to the Defendants in light of
the convenience to the Trustees.

                              A.

       Addressing the applicability of this portion of the
forum non conveniens inquiry to this dispute, the District
Court stated:

       [U]nder the holding of Piper[ Aircraft Co.], the

                               27
       defendant has to make an “oppressive or
       vexatious” showing only in case if [sic] the
       plaintiff is suing in plaintiff’s home forum.
       Since there is no dispute that Plaintiffs in the
       instant action are not suing in their home forum,
       the “oppressive or vexatious” inquiry is
       inapplicable to the case at bar.

Windt, ___ F. Supp. 2d at ___, 2008 WL 877981, at *11
(internal citation omitted) (emphases in original). We agree
with the Trustees that this statement is partly erroneous. Piper
Aircraft Co. does not excuse a defendant from showing that
litigating in the chosen forum would be oppressive or
vexatious when the plaintiff is not suing in the plaintiff’s
home forum. See Piper Aircraft Co., 454 U.S. at 241
(examining oppression and vexation and the district court’s
balancing of the relevant public and private interest factors in
a case brought by Scottish plaintiffs). A defendant must show
that litigation in the chosen forum is oppressive or vexatious
regardless of whether the plaintiff brings suit in his home
forum. The statement by the District Court concerning the
inapplicability of the oppressive or vexatious requirement in
this case does not comport with the principles governing the
forum non conveniens inquiry. Notwithstanding its contrary
prefatory statement, however, the District Court then
proceeded to perform the oppressive or vexatious inquiry, and
its actual consideration and analysis permits us to review its
determination.

                               28
                               B.

       The District Court considered the relevant public and
private interest factors, as well as the extensive litigation
pending in the Netherlands, when it determined that
continuing with this lawsuit in New Jersey would be
oppressive or vexatious to the Defendants:

       Given [that Defendants are involved in
       litigation in both New Jersey and the
       Netherlands], it is not surprising that
       Defendants see Plaintiffs’ litigation in New
       Jersey as “oppressive or vexatious,” since
       Defendants would be forced to stretch their
       resources over both sides of the ocean by: (1)
       hiring different counsel to meet two different
       sets of bar admission requirements and two
       different sets of procedural rules; (2) losing the
       opportunity to seek joinder of actions; (3) flying
       witnesses and themselves across the Atlantic
       both ways on a regular basis, thus incurring
       substantial travel and accommodation expenses;
       and (4) having to translate all relevant
       documents and testimony, etc. Viewed through
       the prism of conveniences available to Plaintiffs
       in Plaintiffs’ home forum and potential dire
       exhaustion of Defendants’ resources through a
       cluster of transatlantic litigations, Plaintiffs’

                               29
       action appears to be “oppressive or vexatious,” .
       ...

Windt, ___ F. Supp. 2d at ___, 2008 WL 877981, at *12.

                               1.

       The Trustees contend that the District Court erred by
considering Dutch litigation and investigations commenced
subsequent to the filing of the instant lawsuit. The forum non
conveniens doctrine, however, does not require a district court
to ignore factors that may impact the analysis simply because
the factors arose after the filing of the lawsuit. See Veba-
Chemie A.G. v. M/V Getafix, 711 F.2d 1243, 1248 (5th Cir.
1983) (“The forum non conveniens analysis has never asked
the courts to reconstruct and weigh[] the relative
conveniences as they existed when plaintiff brought suit.
Instead, the forum non conveniens inquiry – including the
convenience, availability and adequacy elements – has always
been conducted in the present tense.”). That the Dutch
proceedings were initiated after this lawsuit was filed does not
make the considerations of convenience, oppression and
vexation stemming from those proceedings less relevant, as
they were pending at the time of the District Court’s dismissal
order.

                               2.



                              30
       The Trustees contend also that the District Court
misunderstood the nature of the Dutch proceedings and their
relation to this litigation. The Trustees characterize the
Enterprise Chamber proceeding as “still in its formative
stages and . . . not itself a civil litigation.” Appellants’ Br. at
46. The investigative nature of the Enterprise Chamber
proceeding, however, does not lead to the conclusion that the
District Court improperly considered the proceeding. See
Dahl, 632 F.2d at 1030 (considering a then-pending
investigation by the Norwegian Civil Aviation Administration
in assessing the private interests of the parties relevant to the
forum non conveniens analysis); Kryvicky v. Scandinavian
Airlines Sys., 807 F.2d 514, 516 (6th Cir. 1986) (affirming
the district court’s analysis of the private interest factors,
including its consideration of the implications of a Spanish
investigation). Nothing in Piper Aircraft Co. or this Court’s
subsequent case law teaches that only civil litigation, as
distinguished from formal investigations, may be considered
in assessing the oppression and vexation suffered by a
defendant.

       The Trustees contend that the District Court
erroneously concluded that the New Jersey proceeding and
Cargill Financial litigation were significantly related. We
disagree. The complaint filed by Cargill Financial in the
Netherlands alleges that KPNQwest and several individuals
intimately associated with KPNQwest (including Defendants
Nacchio and McMaster) intentionally misrepresented

                                31
KPNQwest’s financial status and solvency to Cargill
Financial when KPNQwest sought to secure a credit facility
from Cargill Financial. Cargill Financial’s complaint also
alleges that all of the defendants named in it were integral in
creating or perpetuating the misrepresentations about
KPNQwest’s financial condition and “knew or should of
known that KPNQwest’s financial condition was not sound
and its business plan not fully funded.” App. JA1165.
Although the Cargill Financial litigation focuses on one credit
transaction, it appears to involve some of the same issues as
this litigation, namely the Defendants’ representations
concerning KPNQwest’s financial condition and the
mismanagement of KPNQwest.

        Additionally, the Trustees assert that the District
Court’s factual misunderstandings concerning the insurance
suits in the Netherlands led to its erroneous conclusion about
the similarities between the insurance litigation and this
litigation. The insurers seek to be relieved of their insurance
obligations because of the actions of the Supervisory Board
and KPNQwest officials in misleading them and the public
about the financial health of the company. The insurance
litigation names all of the individuals in this lawsuit and
contains many of the same issues raised in this litigation.

                               3.

       Finally, the Trustees allege that the District Court

                               32
improperly ignored the U.S.-based, related litigation when it
determined that litigation in New Jersey would be oppressive
or vexatious. Taft v. Ackermans, filed in the Southern District
of New York, was settled in early 2006. Thus, this litigation
had terminated by the time the District Court issued its
dismissal order in this case. Grand v. Nacchio was pending in
the Arizona appellate courts after the trial court granted
summary judgment in favor of the defendants (including
Qwest, Nacchio and McMaster). Based on the record
presented to the District Court, the issues presented in Grand
do not appear to be as significant or substantial as this
litigation or the litigation in the Netherlands.

       We therefore conclude that the District Court did not
abuse its discretion when it determined that litigating this
dispute in New Jersey would be oppressive or vexatious to the
Defendants and that such oppression or vexation outweighed
the convenience to the Trustees in litigating this dispute in
New Jersey.

                            *****

       Having considered all of the Trustees’ contentions
raised in this appeal, we are satisfied that the District Court
did not abuse its discretion in according the Trustees’ forum
choice a low degree of deference, that the District Court did
not abuse its discretion in balancing the public and private
interest factors, and that the District Court did not abuse its

                               33
discretion in determining that continuing with this lawsuit in
New Jersey would be oppressive or vexatious to the
Defendants out of all proportion to the convenience of the
Trustees.

      Accordingly, we will affirm the District Court’s
dismissal of the Trustees’ amended complaint. The
Defendants’ cross-appeal concerning the denial of its motion
to compel arbitration will be dismissed as moot.




                              34
