                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 08-1706


FIDELITY BANK PLC,

                 Plaintiff - Appellee,

           v.

M/T TABORA, her engines, boilers, etc. In Rem, et al.;
NORTHERN FOX SHIPPING N.V.; ERES N.V. BELGIUM, in personam,

                 Defendants – Appellants,

           and

THE MASTER OF THE M/T TABORA,

                 Garnishee.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:05-cv-00871-WDQ)


Argued:   March 24, 2009                    Decided:   June 16, 2009


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Alexander McKenzie Giles, SEMMES, BOWEN & SEMMES,
Baltimore, Maryland, for Appellants.  James Dygert Skeen, SKEEN
& KAUFFMAN, LLP, Baltimore, Maryland, for Appellee.   ON BRIEF:
JoAnne Zawitoski, SEMMES, BOWEN & SEMMES, Baltimore, Maryland,
for Appellants.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             Eres    N.V.   Belgium   (Eres)       and    Northern       Fox   Shipping

N.V. (Northern Fox) appeal the district court’s dismissal of

their   wrongful     arrest    counterclaim        against       Fidelity      Bank   PLC

(Fidelity) on forum non conveniens grounds.                       The dismissal was

conditioned     on    the     Nigerian        Federal     High        Court    accepting

jurisdiction over Eres and Northern Fox and their counterclaim,

which would make an alternative forum available, according to

the district court.         On March 19, 2009, less than a week before

we   heard   oral     argument    (and    well     after        the    district   court

ruled), the Nigerian Federal High Court issued a decision making

it   clear     that     the      Nigerian        courts     have        not    accepted

jurisdiction.          We     therefore        vacate     the     district      court’s

dismissal order and remand for further proceedings.



                                          I.

             The facts underlying the dispute between the parties

were set forth in some detail in our opinion in the previous

appeal in this case.          See Fidelity Bank v. Northern Fox Shipping

N.V., 242 F. App’x 84 (4th Cir. 2007) (unpublished) (affirming

the forum non conveniens dismissal of two of Eres and Northern

Fox’s counterclaims while vacating and remanding with respect to

the dismissal of the wrongful arrest counterclaim, the claim at

issue today).       A brief summary of those facts follows.

                                          3
              Eres, a Belgian corporation, chartered the M/T Tabora,

a    vessel    owned     by    Northern         Fox,     a       Netherlands       Antilles

corporation      to    deliver    a   shipment         of    bitumen      from     Curacao,

Netherlands      Antilles,     to     a   predetermined           place    just     outside

Nigerian waters near the port of Lagos, Nigeria.                          In the fall of

2002 Eres and Northern Fox engaged in a dispute with Fidelity, a

bank organized and located in Nigeria that held the bills of

lading for the cargo (bitumen), over the failed delivery of the

cargo.     That dispute eventually led Fidelity to have the M/T

Tabora arrested in the port of Baltimore, Maryland, on March 31,

2005, pursuant to a verified complaint, which included Eres and

Northern Fox as defendants.               The complaint sought $8,871,076 in

damages.

              The   warrant    for    the       arrest      of    the   M/T   Tabora      was

vacated five days later (on April 5, 2005) based on the district

court’s determination that Fidelity’s in rem claim against the

ship was time barred and that Fidelity had failed to establish

that it had a pending claim against Eres and Northern Fox in

Nigeria.       Fidelity then made an ex parte application to the

Federal High Court in Nigeria for an order allowing Fidelity to

serve    by    courier    outside         Nigerian       jurisdiction         an   amended

statement of claim for wrongful arrest on Eres and Northern Fox,

which that court granted on April 8, 2005.                         The district court

in   Maryland,      however,     denied     Fidelity’s           subsequent      motion    to

                                            4
reconsider    its     order    vacating      the    arrest       of    the    M/T    Tabora.

Meanwhile, also on April 8, 2005, Eres and Northern Fox filed

their    answer      in    district    court       along        with    a     counterclaim

alleging     wrongful       arrest    of    the    M/T     Tabora,      seeking      unpaid

demurrage charges from Fidelity, and requesting a declaratory

judgment that Fidelity’s claim was time barred.

             After Eres and Northern Fox filed a motion for summary

judgment on September 23, 2005, Fidelity moved on October 12,

2005, to have its complaint dismissed without prejudice under

Fed.    R.   Civ.     P.    41(a)(2)       and    to     have     the       entire    action

(including Eres and Northern Fox’s counterclaim) dismissed on

forum non conveniens grounds.               On December 9, 2005, the district

court granted Fidelity’s forum non conveniens motion and denied

Eres and Northern Fox’s summary judgment motion as moot.

             On December 20, 2005, the Nigerian Federal High Court

issued an order dismissing the April 8, 2005, order allowing

Fidelity     to     serve     Eres    and       Northern     Fox       by    courier      (or

substituted service).           The Nigerian court also stated that it

lacked in rem jurisdiction over the M/T Tabora, but that its

original writ of summons was still valid in personam against

Eres and Northern Fox.          Fidelity filed a notice of appeal in the

Nigerian     Court    of    Appeal    challenging         several       rulings      of   the

Federal High Court.           Fidelity claims that its appeal encompassed

the December 20, 2005, ruling of the Federal High Court.

                                            5
               Meanwhile, Eres and Northern Fox appealed the Maryland

district court decision.                On July 13, 2007, this court affirmed

the    forum    non    conveniens        dismissal         as     to    the    demurrage         and

declaratory       judgment        counts        of       Eres      and       Northern       Fox’s

counterclaim, but vacated the dismissal of their wrongful arrest

count and remanded for further forum non conveniens analysis.

Fidelity       Bank,     242   F.    App’x          at    92-93.         Specifically,           we

determined (1) that Fidelity had failed to show that Nigerian

law recognized a claim for wrongful arrest or that the Nigerian

courts would take jurisdiction of that claim and (2) that the

district court had not properly weighed the public and private

interest       factors    at   issue.           Id.      (citing       Gulf    Oil       Corp.   v.

Gilbert, 330 U.S. 501, 508-09 (1947)).

               After     remand     the     district         court       received          further

evidence and briefing on these questions, and on February 28,

2008, it again dismissed Eres and Northern Fox’s wrongful arrest

counterclaim      on     forum    non     conveniens         grounds.              The   district

court first concluded that Eres and Northern Fox had “the better

of    the   statutory     argument”        that       Nigerian         law    did    not   confer

jurisdiction           over      their      wrongful              arrest           counterclaim.

Nevertheless, the court determined that a Nigerian forum “may be

available”      and    “appears     to     be       adequate”      for       the    purposes     of

forum non conveniens.             J.A. 1293, 1296. See Piper Aircraft Co.

v.    Reyno,    454     U.S.     235,     247-55         (1981)    (requiring            that    the

                                                6
foreign    forum      be     both    available          and       adequate).       In    its

discussion      of    whether       Nigeria       was       an    available     forum,   the

district court noted that Fidelity had an ongoing appeal in the

Nigerian Court of Appeal potentially challenging the December

20, 2005, order of the Nigerian Federal High Court that had

vacated its earlier order allowing Fidelity to serve Eres and

Northern Fox by courier.              A decision in Fidelity’s favor would

render Eres and Northern Fox parties to the Nigerian action.

The    district      court    thus    concluded          that       “there    exist[ed]    a

possibility that Eres and Northern Fox could bring the wrongful

arrest counterclaim in Nigeria,” even though “the status of the

Nigerian   action      appear[ed]       to        be   in    flux.”       J.A.    at    1296.

Because of this uncertainty, the district court conditioned its

forum non conveniens dismissal on “the Nigerian Federal High

Court accepting jurisdiction over [Eres and Northern Fox] and

their counterclaim.”          J.A. 1301.

            Eres and Northern Fox then filed the appeal pending

before us today.            At oral argument on March 24, 2009, counsel

for Eres and Northern Fox informed us that the Court of Appeal

in Nigeria had recently issued a written decision in Fidelity’s

purported appeal of the December 20, 2005, order of the Federal

High   Court.        That    decision,       issued         on    March   19,    2009,   was

submitted to this court on March 31.                             The decision held that

Fidelity’s notice of appeal had in fact failed to appeal the

                                              7
December     20,    2005,   order,      which     therefore     remained        intact.

Fidelity Bank PLC v. M/T “Tabora”, CA/L/551/2006, slip op. at 26

(Court of Appeal, Holden at Lagos March 19, 2009).



                                         II.

           We      review   a   district        court’s    forum   non    conveniens

decision for abuse of discretion.                 Piper Aircraft, 454 U.S. at

257.    Forum      non   conveniens      analysis     proceeds     in    two    steps.

First, a court determines whether there exists an alternative

forum that is both available and adequate.                   Piper Aircraft, 454

U.S. at 254.        Second, if such a forum exists, the court must

then weigh the private and public interest factors from Gulf

Oil.   330 U.S. 501.

           The      primary     issue      before    the    district      court    was

whether the Nigerian courts would recognize and entertain Eres

and Northern Fox’s counterclaim for wrongful arrest.                           If not,

Nigeria would not be available as an alternative forum.                             The

district court held that because there was a possibility that

the pending appeal in the Nigerian Court of Appeal would result

in the assertion of jurisdiction over Eres and Northern Fox and

their claims, Nigeria was an available alternative forum.                           But

in order to account for the uncertainty surrounding the Nigerian

proceedings,       the   district       court     conditioned      its    forum    non

conveniens      dismissal       on   the       Nigerian    Federal       High     Court

                                           8
accepting      jurisdiction         over    Eres       and     Northern         Fox    and   their

counterclaim.

              Notwithstanding the inclusion of the condition, there

is a question of whether a forum non conveniens dismissal may be

based    on    only     a     possibility         that       an    alternative         forum    is

available.         See Bank of Credit & Commerce Int’l (Overseas) Ltd.

v. State Bank of Pakistan, 273 F.3d 241, 247 (2d Cir. 2001)

(holding that a district court dismissing a case on forum non

conveniens grounds should have a “‘justifiable belief’ that the

[alternative         forum]    would       not       decline       to    hear    the    case.”).

However,      we   need     not     grapple      with       that    question      because      the

March 19, 2009, decision of the Nigerian Court of Appeal has

made    it    clear     that      the   Nigerian            courts      have     not    accepted

jurisdiction over the wrongful arrest claim at issue here.                                     That

decision      affirmed        the    continuing          vitality         of     the    Nigerian

Federal High Court’s December 20, 2005, order, which dismissed a

prior order allowing Fidelity to serve Eres and Northern Fox by

courier       outside       Nigerian        jurisdiction.                  Fidelity          Bank,

CA/L/551/2006, slip op. at 26.                        The Court of Appeal decision

states in no uncertain terms that the Nigerian courts lacked in

rem jurisdiction over the M/T Tabora, that service has not been

made    on    Eres    or    Northern       Fox,       and    that       substituted      service

cannot be made on Eres and Northern Fox because the December 20,



                                                 9
2005, order of the Federal High Court disallowing such service

was left intact.     CA/L/551/2006, slip op. at 15, 26.

           Thus, regardless of whether the district court erred

in granting a forum non conveniens dismissal, the condition on

which that dismissal was based -- that the Nigerian Federal High

Court accept jurisdiction over Eres and Northern Fox and their

counterclaim -- has not been satisfied.       We therefore vacate the

district   court’s    order   dismissing   Eres   and   Northern   Fox’s

wrongful arrest counterclaim and remand for proceedings on the

merits of that claim.

                                                  VACATED AND REMANDED




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