     15-2664
     Guerrini v. Atmel Corp.

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
     RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
     ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
     OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   27th day of June, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            GUIDO CALABRESI,
 8            REENA RAGGI,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   JEAN YVES GUERRINI, individually and on
13   behalf of all other persons similarly
14   situated, LFOUNDRY ROUSSET SAS,
15             Plaintiffs-Appellants,
16
17                -v.-                                           15-2664
18
19   ATMEL CORP., ATMEL ROUSSET SAS,
20   LFOUNDRY GMBH,
21            Defendants-Appellees.
22
23   - - - - - - - - - - - - - - - - - - - -X
24
25   FOR APPELLANTS:                         PHILIPPE JEAN JOSEPH PRADAL
26                                           (Lauren A. Marshall, on the



                                                1
 1                                brief), Pradal & Associates PLLC,
 2                                New York, NY.
 3
 4   FOR ATMEL APPELLEES:         MICHAEL LACOVARA (Samuel J. Rubin,
 5                                on the brief), Freshfields
 6                                Bruckhaus Deringer US LLP, New
 7                                York, NY.
 8
 9   FOR LFOUNDRY APPELLEES:      GREGORY F. HAUSER, Wuersch &
10                                Gering LLP, New York, NY.
11
12        Appeal from a judgment of the United States District Court
13   for the Southern District of New York (Swain, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
16   DECREED that the judgment of the district court be AFFIRMED.
17
18        Plaintiffs Jean Yves Guerrini and LFoundry Rousset SAS
19   appeal from the judgment of the United States District Court
20   for the Southern District of New York (Swain, J.) dismissing
21   for forum non conveniens their complaint asserting principally
22   claims under RICO against defendants Atmel Corp., Atmel Rousset
23   SAS, and LFoundry GmbH. We assume the parties’ familiarity
24   with the underlying facts, the procedural history, and the
25   issues presented for review.

26        This action arises out of the sale of a manufacturing
27   facility in France from Atmel Rousset, a French company (and
28   a subsidiary of Atmel, a California corporation), to LFoundry,
29   a German company. After the sale, the facility was operated
30   by LFoundry Rousset, a French subsidiary of LFoundry, which
31   employed Guerrini and over 700 other French workers. A few
32   years after the sale closed, a bankrupt LFoundry Rousset
33   initiated liquidation proceedings in France, and fired most of
34   its employees (those terminated comprise the putative class).
35   Guerrini and LFoundry allege that Atmel and Atmel Rousset
36   conspired with LFoundry to fraudulently convey the
37   manufacturing facility to a nearly insolvent LFoundry,
38   virtually guaranteeing the bankruptcy of LFoundry Rousset, and
39   did so to avoid French labor laws that would have required that
40   Atmel Rousset compensate the former employees of the facility
41   were Atmel Rousset to shut down the facility itself.

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 1        The plaintiffs filed a complaint in the Southern District
 2   of New York, alleging principally that the defendants’
 3   fraudulent scheme violated RICO. The plaintiffs sought and
 4   received limited jurisdictional discovery in advance of the
 5   defendants’ motion to dismiss on, inter alia, the ground that
 6   France is the more appropriate forum for this litigation.
 7   Based on the pleadings and affidavits, the district court
 8   conditioned dismissal of the complaint for forum non conveniens
 9   on the defendants’ written consent to jurisdiction in France.
10   After the defendants provided the requisite written consent,
11   the district court dismissed the complaint. The plaintiffs
12   appealed.

13        We generally review the dismissal of a case on the basis
14   of forum non conveniens for abuse of discretion, Iragorri v.
15   United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 2001) (en banc),
16   unless the dismissal is based on a forum selection clause, in
17   which case we review the decision de novo, Phillips v. Audio
18   Active Ltd., 494 F.3d 378, 384 (2d Cir. 2007). See Martinez
19   v. Bloomberg LP, 740 F.3d 211, 217 (2d Cir. 2014).

20        1. While a forum selection clause is typically presumed
21   to be enforceable, that is only true if the claims in question
22   are encompassed by the forum selection clause. Phillips, 494
23   F.3d at 386-87. The plaintiffs argue that the district court
24   erred in failing to enforce the forum selection clauses
25   contained in a variety of contracts related to the sale of the
26   manufacturing facility that identify New York as the exclusive
27   forum for disputes arising thereunder. LFoundry Rousset is a
28   party to two of these contracts and the defendants are party
29   to all five of them; but the plaintiffs do not allege that any
30   of the contracts have been breached. Because the plaintiffs
31   do not bring contract claims, the district court concluded the
32   forum selection clauses were irrelevant. We agree.

33        The gravamen of the plaintiffs’ complaint is that the sale
34   of the manufacturing facility from Atmel Rousset to LFoundry
35   was a fraudulent conveyance, designed to deny compensation to
36   LFoundry Rousset and its employees. This suit has nothing to
37   do with the contracts the plaintiffs have identified. Indeed,
38   if their claims to void the sale were construed to sound in
39   contract, the contract to that sale does not contain a forum

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 1   selection clause. The district court correctly rejected the
 2   plaintiffs’ attempted invocation of the forum selection clauses
 3   found in ancillary contracts.

 4        2. Courts must determine and weigh three factors for forum
 5   non conveniens challenges: (i) the degree of deference due to
 6   the plaintiffs’ choice of forum; (ii) whether an adequate
 7   alternative forum exists; and (iii) the balance of public and
 8   private interests implicated in the choice of forum. Iragorri,
 9   274 F.3d at 70-74. The plaintiffs argue the district court
10   abused its discretion with respect to each of the three factors.
11   We disagree.

12        The district court’s well-reasoned opinion identified and
13   applied the three-part Iragorri test. We agree with the
14   district court that: (i) the plaintiffs’ choice of New York was
15   entitled to little weight because New York was plainly chosen
16   for a tactical advantage and this suit has little to do with
17   New York; (ii) France is an adequate alternative forum because
18   French courts tolerate claims like those brought by the
19   plaintiffs and the defendants expressly consented to
20   jurisdiction there; and (iii) the private and public interest
21   factors strongly support adjudication in France because the
22   locus of operative facts is in France and France has a far
23   greater interest in the litigation than does New York.

24        Accordingly, and finding no merit in the plaintiffs’ other
25   arguments, we hereby AFFIRM the judgment of the district court.

26                                FOR THE COURT:
27                                CATHERINE O’HAGAN WOLFE, CLERK
28




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