                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 26 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DANIEL P. NEELON,                                No. 12-56958

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00874-R-MAN

  v.
                                                 MEMORANDUM*
STAN BHARTI; BLAIR KRUEGER;
FORBES & MANHATTAN, INC.;
DESERT EAGLE RESOURCES, LTD.,
DBA Garrison International, Ltd.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                     Argued and Submitted December 9, 2014
                              Pasadena, California

Before: WARDLAW and BERZON, Circuit Judges, and SMITH, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

        **    The Honorable William E. Smith, Chief United States District Judge
for the District Rhode Island, sitting by designation.
      Daniel P. Neelon (“Neelon”) appeals the district court’s dismissal, on forum

non conveniens grounds, of his claims against Stan Bharti (“Bharti”) and Forbes &

Manhattan, Inc. (collectively, “Defendants”). We reverse. Because the parties are

familiar with the factual and procedural history of this case, it is unnecessary to

recount it here.

      Neelon argues that the district court abused its discretion by failing to accord

Neelon’s forum choice proper deference, failing to consider the relevant private

and public interest factors, and striking an unreasonable balance of the factors that

were considered.1 We agree.

      The district court offered the following consideration of the private and

public interest factors:

            The key witnesses for plaintiff and defendants are located in
      Mongolia and Canada. In addition, most documentary evidence will
      have to be collected and shipped from these countries.
            Further, most, if not all, of the allegedly defamatory statements
      were made and disseminated from Canada.
            On balance, the public and private interest factors weigh in
      favor of the Court granting dismissal for forum non conveniens.

The district court failed to consider several relevant factors.




      1
       Neelon does not challenge the district court’s determination that Canada
provides an adequate alternative forum for his claims. Accordingly, we do not
address this aspect of the district court’s ruling.

                                           2
      First, and most important, the district court failed to consider the residence

of the parties. Although Neelon, a Massachusetts resident, resides outside of the

forum, he is a United States citizen. “‘[W]here the plaintiff is a United States

citizen, the defendant must satisfy a heavy burden of proof,’” Boston Telecomms.

Grp., Inc. v. Wood, 588 F.3d 1201, 1207 (9th Cir. 2009) (quoting Lueck v.

Sundstrand Corp., 236 F.3d 1137, 1143 (9th Cir. 2001)), and, “‘unless the balance

is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely

be disturbed,’” id. (quoting Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1334-35

(9th Cir. 1984)).2 The district court did not weigh Neelon’s residency or consider

the deference due Neelon’s chosen forum.




      2
         At oral argument, Defendants argued that this principle from Boston
Telecomms. Grp., Inc. v. Wood, 588 F.3d 1201, 1207 (9th Cir. 2009), applies only
in cases where the forum has ties to the claims asserted in the litigation; citing
Lueck v. Sundstrand Corp., 236 F.3d 1137 (9th Cir. 2001), and In re Air Crash
Over Taiwan Straits on May 25, 2002, 331 F. Supp. 2d 1176 (C.D. Cal. 2004),
Defendants suggested that these cases hold that the forum choice of a United States
citizen who is not a forum resident is not entitled to much deference where there is
no connection between the forum and the underlying facts of the case. This
argument is meritless. Nothing in Boston Telecomms. limits the deference that
must be accorded the forum choice of a United States citizen who is not a forum
resident in the manner suggested by Defendants. Moreover, in Lueck, 236 F.3d at
1140, all of the plaintiffs were citizens of New Zealand, and in In re Air Crash
Over Taiwan Straits, 331 F. Supp. 2d at 1190, the “vast majority” of the plaintiffs
were not United States citizens.

                                           3
      Second, the district court failed to consider the forum’s convenience to the

litigants, a private interest factor for which Defendants provided the district court

no evidence. Although Bharti executed a brief declaration, it contained no

allegation that litigation in California would be inconvenient for Defendants.

Defendants’ only effort to address convenience—both before the district court and

on appeal—consisted of arguing that Neelon had failed to show that litigation in

California would be convenient and that it would be inconvenient to litigate in

Canada or Mongolia. Defendants misapprehend the identity of the party bearing

the burden in the forum non conveniens inquiry. “[A] plaintiff need not select the

optimal forum for his claim, but only a forum that is not so oppressive and

vexatious to the defendant ‘as to be out of proportion to plaintiff’s convenience.’”

Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1180 (9th Cir. 2006)

(quoting Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir. 2000)). Defendants

made no effort to shoulder their burden of showing oppressive and vexatious

inconvenience in litigating in California.

      Finally, the district court failed to explicitly consider any of the public

interest factors, and, in any event, none of them appears to strongly favor

dismissal.




                                             4
      In addition to the district court’s failure to consider relevant factors, the

district court made several errors in weighing the factors that it did consider. First

and foremost, the district court erred by focusing solely on the location of the

witnesses. “[T]he focus for this private interest analysis should not rest on the

number of witnesses . . . in each locale but rather the court should evaluate the

materiality and importance of the anticipated . . . witnesses’ testimony and then

determine their accessibility and convenience to the forum.” Carijano v. Occidental

Petroleum Corp., 643 F.3d 1216, 1231 (9th Cir. 2011), cert. denied, 133 S.Ct. 1996

(2013) (quoting Boston Telecomms., 588 F.3d at 1209) (internal quotation marks

omitted). The district court failed to perform the required analysis, and Defendants

failed to provide enough information to do so. Defendants only provided a list of

witnesses who resided in either Canada or Mongolia. This showing was

insufficient to carry Defendants’ burden. See Carijano, 643 F.3d at 1231; Boston

Telecomms., 588 F.3d at 1210.

      Additionally, the district court’s determination that “most documentary

evidence will have to be collected and shipped from” Canada or Mongolia is not

supported by any evidence in the record. Defendants provided no evidence to the

district court regarding the location of any documentary evidence. The only

evidence in the record regarding the location of documents cuts the other way:


                                           5
Neelon asserted in his declaration that he possessed several key documents that

readily demonstrate the falsity of the alleged defamatory statements made by

Defendants. By disregarding the only record evidence on the location of

documentary evidence and making a factual finding regarding the location of the

documentary evidence not supported by the record, the district court abused its

discretion in weighing the evidence. See Carijano, 643 F.3d at 1224 (explaining

that district court abuses its discretion when it relies on a clearly erroneous

assessment of the evidence).

      A district court abuses its discretion in the forum non conveniens context

“when it fails to hold a party to its ‘burden of making a clear showing of facts

which establish such oppression and vexation of a defendant as to be out of

proportion to plaintiff’s convenience,’ or when it ‘fail[s] to consider relevant

private and public interest factors and misconstrue[s] others.’” Carijano, 643 F.3d

at 1236 (citations omitted) (quoting Boston Telecomms., 588 F.3d at 1212; Gates

Learjet, 743 F.2d at 1337). The district court in this case committed these errors

with the result that it applied the “‘exceptional tool’” of a forum non conveniens

dismissal in a case in which the defendants wholly failed to justify such “a drastic

exercise of the court’s ‘inherent power.’” Id. at 1224 (quoting Dole Food Co. v.

Watts, 303 F.3d 1104, 1118 (9th Cir. 2002)). Accordingly, we reverse the order of


                                           6
the district court. The record makes abundantly clear that this case should be

litigated in the district where it was filed.



       REVERSED AND REMANDED.




                                                7
