                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 October 12, 2007
                                No. 06-14594                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                      D. C. Docket No. 05-22715-CV-FAM

MARIA A. ZELAYA,
a.k.a. Maria DeLos Angeles Zelaya,

                                                              Plaintiff-Appellant,


                                     versus


GERTRUDE DE ZELAYA,
a.k.a. Gertrudis Pineda De Zelaya,

                                                             Defendant-Appellee.


                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                               (October 12, 2007)

Before ANDERSON, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
      Maria A. Zelaya, a citizen of Florida, appeals the dismissal of her complaint

against her mother, Gertrude De Zelaya, a citizen of California, for breach of a

contract to recover property located in Nicaragua. The issue we must decide is

whether the district court abused its discretion when it dismissed Maria’s

complaint on the ground of forum non conveniens. Because the district court

failed to consider the relative advantages and disadvantages of both fora and the

record is undeveloped for the resolution of this issue, we vacate the order of

dismissal and remand for further proceedings.

                                I. BACKGROUND

      In 1998, Maria, an attorney, entered a written contract with her father,

mother, and aunt to help recover properties previously confiscated by the

Nicaraguan government. The contract provided that “as compensation for her

services, [Maria] will receive a commission in the equivalent amount of Ten

Percent (10%) of the recovered properties.” If the recovery was in the form of

government bonds, Maria would receive her commission in the form of bonds. If

the recovery of the property was “a physical devolution,” Maria would “receive her

compensation in the form of Nicaraguan currency according to the fair market

value of the property.” Maria alleged that the parties agreed she would be paid

from the sale of the recovered properties. Maria’s father later died. Maria alleges



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that Gertrude was the sole heir of the share of the property belonging to her late

husband, Maria’s father, and that Maria’s aunt gave Gertrude full control over any

interest the aunt had in the Nicaraguan property.

      Maria alleged that between 1997 and 2004 she processed the claims of her

family members and recovered several properties from the Nicaraguan

government, including five “commercial modules” located at a shopping center in

Managua, Nicaragua, a beach house at Velero Beach, Nicaragua, and 18 lots

located at Carretera Masaya. Maria submitted to the district court the deed to one

of the properties and alleged that Gertrude possesses the original deeds to the

remaining recovered properties. Maria alleged that, after the properties were

recovered, Gertrude enlisted her assistance in selling the properties. Specifically,

Maria alleged that Gertrude requested that she travel to Nicaragua to arrange for

the commercial properties to be cleaned and refurbished and for the lots at

Carretera Masaya to be cleared of debris and dilapidated structures, to engage the

services of a real estate agent, review offers made, and negotiate with potential

buyers. In return for her services, Maria would be paid the percentage reduction

from the standard 6% real estate commission that Maria negotiated with the real

estate agent. Maria alleged that she negotiated a 4% reduction. Maria further

alleged that she performed the promised services and received offers on several of



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the properties, but that in March 2004, Gertrude informed Maria that she was not

going to sell the properties and refused to pay Maria for recovering the properties

and assisting in the sale of the recovered properties.

      Maria commenced this breach of contract action against Gertrude. Gertrude

moved to dismiss the action on the basis of forum non conveniens. In support of

her motion, Gertrude submitted the affidavit of law professor Keith S. Rosenn.

Rosenn’s affidavit addressed the availability of Nicaragua as a suitable and

available forum for the resolution of Maria’s complaint. In his affidavit, Rosenn

summarized the history of land titles in Nicaragua “since the Sandinistas ousted the

Somoza regime in 1979” and stated that “[c]onsiderable uncertainty about legal

titles to real urban and rural property still exists in Nicaragua,” but did not opine

regarding the validity of the specific land titles allegedly recovered by Maria.

      Maria submitted her own affidavit in opposition to the motion as well as a

certified copy of the deed to several of the recovered properties. Maria asserted in

her affidavit and responsive pleading that the essential witnesses to her breach of

contract action are the parties to the contract, both of whom are citizens of the

United States. She states that the documentary evidence, including the titles to the

properties, correspondence, facsimiles, e-mails, and photographs of improvements

made to the recovered properties, are located in the United States. Maria also



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submitted a declaration in which she stated that she recovered the properties from

the Nicaraguan government, delivered the original titles and deeds to Gertrude, and

that no one other than the Nicaraguan government held title or possessed the

properties during the period of their confiscation.

      Following a hearing on the motion to dismiss, Gertrude submitted a

declaration in which she stated she would submit to the jurisdiction of the

Nicaraguan courts. Maria moved to set aside the declaration of Gertrude and for

an evidentiary hearing on the validity of Gertrude’s signature. Gertrude submitted

an affidavit attesting to the signature in the declaration and again stating that she

would consent to the jurisdiction of a Nicaraguan court. Gertrude also submitted

an affidavit of attorney J. Ronald Hershberger, who attested to the authenticity of

Gertrude’s signature on the supplemental affidavit and stated that Gertrude made

the statements knowingly.

      The district court granted Gertrude’s motion to dismiss for forum non

conveniens. The district court acknowledged in its order that Maria, a citizen of

the United States, would receive a high level of deference for her choice of forum.

The district court explicated why Nicaragua was an adequate and available forum

for plaintiff’s breach of contract complaint. The court next outlined the private and

public interest factors to be considered and weighed, but only discussed the



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advantages of resolving the dispute in Nicaragua. The district court stated that the

“fundamental issue in this suit involves the authoritative determination of whether

[Gertrude] has received marketable title over Nicaraguan real estate under

Nicaraguan law,” and announced that “[Maria] would have to rely on testimony

from Nicaraguan government officials to prove that the disputed properties are no

longer owned or controlled by the Nicaraguan government.” Other than its

reference to unspecified Nicaraguan government officials, the district court did not

identify what witnesses or documentary evidence would be located in Nicaragua,

nor did it identify the witnesses and documentary evidence located in the United

States that would be used in a trial of this action. Regarding the public interest

factors, the district court identified the Nicaraguan interest in resolving disputes

about titles to Nicaraguan property, but did not identify or weigh the interests of

the United States with the Nicaraguan interest.

                          II. STANDARDS OF REVIEW

      We review a determination by a district court of forum non conveniens for a

clear abuse of discretion. SME Racks v. Sistemas Mecanicos Para Electronica, 382

F.3d 1097, 1100 (11th Cir. 2004). “[W]here 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.” Id. (quoting Piper Aircraft



                                           6
Co. v. Reyno, 454 U.S. 235, 257, 102 S. Ct. 252, 266 (1981) (internal quotation

marks omitted).

         We review the denial of a motion for an evidentiary hearing for an abuse of

discretion. Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1250 (11th Cir.

2005).

                                  III. DISCUSSION

         To prevail on a motion to dismiss for forum non conveniens, the moving

party must show that “(1) an adequate alternative forum is available, (2) the public

and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate

his suit in the alternative forum without undue inconvenience or prejudice.” Leon

v. Million Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001). When a district court

considers a motion for dismissal on ground of forum non conveniens, it “must

consider all relevant factors of private interest, weighing in the balance a strong

presumption against disturbing plaintiffs’ initial forum choice.” La Seguridad v.

Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983) (quoting Pain v. United

Technologies Corp., 637 F.2d 775, 784–85 (D.C. Cir. 1980)) (emphasis omitted)

(internal quotation marks omitted). “[I]n considering the private interests of the

litigants, some important considerations are: relative ease of access to sources of

proof; ability to obtain witnesses; possibility of view of premises, if relevant; and



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‘all other practical problems that make trial of a case easy, expeditious and

inexpensive.’” Id. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct.

839, 843 (1947)).

      A district court, in the exercise of its discretion, must weigh the competing

private and public interests of each forum. Although we give substantial deference

to the decision of a district court when it has reasonably balanced those interests, a

district court “abuses its discretion when it fails to balance the relevant factors.” Id.

at 1308. We have suggested that “where the [district] court does not weigh the

relative advantages of the respective forums but considers only the disadvantages

of one, it has abused its discretion.” Id.

      We have also required that the weighing of the public and private interests

be based on issues framed by the parties and an evidentiary record, not

“speculat[ion] as to what witnesses and documents might be relevant and where

they might be located.” Id. at 1308. “Until the issues are framed, there is simply

no basis for a forum non conveniens determination other than sheer speculation.”

Id. at 1308–09. A district court “must delineate what issues will be dispositive and

where the evidence relevant to those issues will be found. To the extent that the

location of this evidence is disputed, the appellee, as defendant, will bear the

burden of showing that this evidence is inaccessible or inconvenient to the forum.”



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Id. at 1309.

      The district court abused its discretion in two ways. First, the order of the

district court is devoid of any analysis of the relative advantages and disadvantages

of the two fora. See id. at 1308; see also SME Racks v. Sistemas Mecanicos Para

Electronica, 382 F.3d 1097, 1100 (11th Cir. 2004). The district court mentioned

the deference owed to the plaintiff’s choice of forum, but then considered only the

advantages of a Nicaraguan forum. The district court failed to explain any relative

advantages or disadvantages of an American forum.

      Second, the district court failed to obtain adequate support from an

evidentiary record. The district court speculated that the “fundamental issue” in

this breach of contract action is whether Gertrude “has received marketable title

over Nicaraguan real estate under Nicaraguan law,” but the record is devoid of any

evidence about that issue. Gertrude has not identified a witness who disputes the

validity of the titles and deeds in her possession.

      Maria also argues that the district court abused its discretion when it granted

the motion to dismiss without first holding an evidentiary hearing regarding the

validity of Gertrude’s signature on a declaration in support of her motion to

dismiss. We disagree. Gertrude submitted a supplemental affidavit attesting to the

validity of her signature.



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      We do not decide whether it would be more convenient to try this action in

Nicaragua or the United States. As in La Seguridad, “[o]n the fragmentary record

before us, it is impossible to make a sound determination of relative convenience.”

707 F.2d at 1308. Instead, we vacate the order and remand for further

development of the facts and issues. The district court may well conclude that the

private and public interest factors weigh in favor of trying the action in Nicaragua,

but the district court “must weigh the advantages of the United States forum in the

balance” and “consider the prejudice and inconvenience suffered by [Maria] if

[she] is relegated to [Nicaragua] for resolution of [her] claim.” Id. at 1310.

      VACATED AND REMANDED.




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