     Case: 13-50106      Document: 00512573000         Page: 1    Date Filed: 03/25/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit

                                                                              FILED
                                                                          March 25, 2014
                                      No. 13-50106
                                                                           Lyle W. Cayce
                                                                                Clerk
ROYAL TEN CATE USA, INCORPORATED, a Delaware corporation;
KONINKLIJKE TEN CATE N.V., a Dutch company; TEN CATE UK,
LIMITED,

                                                 Plaintiffs - Appellants
v.

TT INVESTORS, LIMITED, formally known as Tiger Turf International
Limited, a New Zealand company; TTAH, LIMITED, formerly known as
Tiger Turf Americas Holdings Limited, a New Zealand company,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                         of the Western District of Texas
                             USDC No. 1:11-CV-1057


Before KING, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellants Royal Ten Cate challenge the district court’s
dismissal under the doctrine of forum non conveniens.                 For the following
reasons, we VACATE and REMAND for further proceedings.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-50106
                        FACTS AND PROCEEDINGS
      In 2009, Koninklijke Ten Cate N.V., a Dutch textile manufacture with
headquarters in the Netherlands, along with two of its subsidiaries, (1) Royal
Ten Cate USA, Inc., a Delaware company with principle place of business in
Georgia, and (2) Ten Cate UK Limited, a British corporation (collectively “Ten
Cate”), entered into an acquisition agreement with two New Zealand
companies, TTAH Limited (“TTAH”) and TT Investors (“TTI”) (collectively
“TigerTurf”).   In the agreement, Ten Cate agreed to purchase from the
TigerTurf Group shares in various operating subsidiaries. TTI agreed to sell
its stock in its New Zealand and Australian operating subsidiaries to
Koninklijke Ten Cate, and its shares in its UK operating subsidiary to Ten
Cate UK.     TTAH agreed to sell its shares in its American subsidiary—
TigerSports Americas Inc. (“Tiger Sports”)—to Royal Ten Cate USA.
TigerSports Americas is headquarted in Austin, Texas. The agreement was
negotiated and executed in New Zealand and is governed by New Zealand law.
The agreement provided that the shares in the operating subsidiaries would
be sold in three parcels to the relevant Ten Cate party.
      Ten Cate purchased the first two parcels, but when the TigerTurf Group
tried to exercise their option to sell the third parcel to Ten Cate in spring 2011,
Ten Cate asserted that it was entitled to offset the price of the third parcel
against the losses that Ten Cate claimed it had suffered as a result of the
TigerTurf Group’s alleged breach of warranties in the acquisition agreement.
Ten Cate argued that the TigerTurf Group breached three warranties in the
acquisition agreement by failing to properly disclose two types of information.
      First, Ten Cate alleged that by failing to disclose various claims by Tiger
Sports customers in North America that Tiger Sports artificial field turf was
subpar, the TigerTurf Group breached warranties that Tiger Sports had (a) no
undisclosed contingent liabilities, and (b) was not in breach of any material
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                                       No. 13-50106
contract or agreement. Second, Ten Cate alleged that the TigerTurf Group
provided Ten Cate with inaccurate EBITDA 1 information for all four of the
purchased operating subsidiaries in violation of a warranty that all
information provided was accurate. Because Section 30 of the acquisition
agreement required an expert proceeding in New Zealand to determine
whether Ten Cate’s breach of warranty claims had a reasonable chance of
success, Ten Cate initiated an expert proceeding in New Zealand in summer
2011.
        After initiating the expert proceeding in New Zealand, Ten Cate filed
suit against TigerTurf in the Western District of Texas in December 2011 for
breach of the warranties in the acquisition agreement. Two weeks later, the
TigerTurf Group countered with its own suit in the New Zealand High Court
(the “New Zealand case”). The New Zealand case centers upon Tiger Turf’s
claim that Ten Cate breached the acquisition agreement by failing to pay the
full price for the last parcel of stock. Ten Cate attempted to stay the New
Zealand case, but the New Zealand High Court denied the request. Ten Cate
concedes that it could bring its Texas claims as counterclaims in the New
Zealand case.
        In addition to filing the New Zealand case, the TigerTurf Group also
moved to dismiss the Texas proceedings for lack of personal jurisdiction. Ten
Cate responded by moving for jurisdictional discovery as to the TigerTurf
Group’s contacts with Texas, which the district court granted. After
jurisdictional discovery concluded in September 2012, Ten Cate filed an
additional motion to dismiss on the basis of forum non conveniens.


        1“EBITDA”  stands for earnings before interest, taxes, depreciation, and amortization,
and is one way of attempting to measure a company’s cash flow. Ten Cate’s EBITDA claim
alleges that TigerTurf provided interim, provisional EBITDA estimates to Ten Cate that
overstated TigerTurf’s ultimate EBITDA by NZD$3.95 million.

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                                No. 13-50106
      Rather than resolving the personal jurisdiction dispute, the magistrate
judge recommended than the Texas case be dismissed on forum non conveniens
grounds. The magistrate judge found, and Ten Cate did not dispute, that New
Zealand was an adequate and available alternative forum. The court then
evaluated the private and public interest factors, and found that they
warranted dismissal of the case to New Zealand.
      Ten Cate filed an objection to the magistrate judge’s report and
recommendation. The district court overruled Ten Cate’s objections, adopted
the magistrate judge’s report and recommendation, and entered final
judgment. Ten Cate then appealed to this court.


                         STANDARD OF REVIEW
      “The 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). In reviewing the district court’s decision, we seek to ensure that the
district court asked the proper questions to determine whether a dismissal is
warranted, and arrived at reasonable answers to those questions. Alpine View
Co. Ltd. v. Atlas Copco AB, 205 F.3d 208 (5th Cir. 2000). Our duty is not to
perform a de novo analysis and determine whether we would arrive at the
exact same determination as the district court.   Camejo v. Ocean Drilling &
Exploration, 838 F.2d 1374, 1379 (5th Cir. 1988). “[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.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257.




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                                 No. 13-50106
                                DISCUSSION
      A district court’s authority to dismiss a case on the basis of forum non
conveniens “derives from the court’s inherent power, under Article III of the
Constitution, to control the administration of the litigation before it and to
prevent its process from becoming an instrument of abuse, injustice, or
oppression.” Baumgart v. Fairchild Aircraft Corp., 981 F.2d 824, 828 (5th Cir.
1993). Convenience for the litigants and the public at large “is the cornerstone”
of the forum non conveniens inquiry. Great Prize, S.A. v. Mariner Shipping
Party, Ltd., 967 F.2d 157, 160 (5th Cir. 1992).
      To obtain a dismissal on the basis of forum non conveniens, “a party must
demonstrate (1) the existence of an available and adequate alternative forum
and (2) that the balance of relevant private and public interest factors favor
dismissal.” Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 671 (5th Cir.
2003). To evaluate the private and public interest factors, courts apply the
factors set out by Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508 (1947).     Gulf Oil
indicates that when evaluating the private interest factors,
      [i]mportant considerations are 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. There may
      also be questions as to the enforceability of a judgment if one is
      obtained. The court will weigh relative advantages and obstacles
      to fair trial.

330 U.S. at 508. By contrast, when evaluating the public interest factors, a
court should consider the
      [a]dministrative difficulties [that] follow for courts when litigation
      is piled up in congested centers instead of being handled at its
      origin. Jury duty is a burden that ought not to be imposed upon
      the people of a community which has no relation to the litigation.
      In cases which touch the affairs of many persons, there is reason
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                                 No. 13-50106
      for holding the trial in their view and reach rather than in remote
      parts of the country where they can learn of it by report only. There
      is a local interest in having localized controversies decided at
      home. There is an appropriateness, too, in having the trial of a
      diversity case in a forum that is at home with the . . . law that must
      govern the case, rather than having a court in some other forum
      untangle problems in conflict of laws, and in law foreign to itself.

Id. at 508-509.
      No particular element of the test is “of dispositive weight” when
performing a forum non conveniens analysis. Syndicate 420 at Lloyd’s London
v. Early Am. Ins. Co., 796 F.2d 821, 827 (5th Cir. 1986). What matters instead
is that the defendants show that, overall, the convenience of the alternative
forum outweighs the appropriate deference shown to the plaintiff’s choice of
forum. Id. at 830. The defendant has “the burden of invoking the doctrine and
moving to dismiss in favor of a foreign forum.” In re Air Crash Disaster Near
New Orleans, La. on July 9, 1982, 821 F.2d 1147, 1164 (5th Cir. 1987),
overturned on other grounds, 490 U.S. 1032 (1989). That burden “runs to all
the elements of the forum non conveniens analysis.” Id. at 1165.
      As it is uncontroverted that New Zealand is an available and adequate
alternative forum, Ten Cate argues that the district court erred when
evaluating (1) the private interest factors, (2) the public interest factors, and
(3) the level of deference applied to Ten Cate’s choice of forum.
      (A)   Private Interest Factors
      When evaluating forum non conveniens dismissals, courts examine the
parties’ ability to compel unwilling witnesses as well as the cost of attendance
for willing witnesses in each forum. Gulf Oil, 330 U.S. at 508. While the
district court did examine both factors, it did not resolve a significant dispute
as to whether two key witnesses who reside in Texas would be amenable to
process in New Zealand. Instead, the district court posited that both sides have
willing and unwilling witnesses, more of those potential witnesses are subject
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to process in New Zealand, and that the costs of having witnesses testify via
video-link in New Zealand is cheaper than flying them to Texas.
      The two potentially unwilling Texas witnesses discussed by the parties
are former employees of Tiger Sports with potential knowledge of claims about
defective turf sold by Tiger Sports. The parties agree that the Texas witnesses
are key witnesses. Ten Cate asserts, with reference to evidence in the record,
that these witnesses are located in Texas and are unwilling to testify, and are
outside the compulsory process of New Zealand courts. The TigerTurf Group
asserts that they are contractually obligated to continue to cooperate with
Tiger Sports after the end of their employment, including by providing
testimony. Thus, what we have here is a dispute over whether key witnesses
who could be compelled in the plaintiff’s chosen forum are available in the
alternative forum, where the plaintiff has made a credible showing that the
key witnesses are unavailable in the alternative forum. On the other hand,
many of the TigerTurf witnesses appear to be employees, former employees or
independent contractors of TigerTurf, who may be willing witnesses. In these
circumstances, the availability of the key Texas witnesses potentially has a
significant impact on the balance of conveniences and the deference due to the
plaintiff’s choice of forum. If Ten Cate is the primary party with unwilling
witnesses, and those witnesses may not be compelled to appear in New
Zealand, then the unwilling witness factor and the plaintiff’s choice of forum
may support maintaining the case in the United States, as it is the only forum
in which Ten Cate can obtain the testimony of its undisputedly key witnesses.
      The district court concluded that the unwilling witnesses prong of the
analysis favored New Zealand, despite this unresolved dispute regarding the
availability of the Texas witnesses. Absent a proper weighing of this private
interest factor, we are unable to determine if the district court’s dismissal was
reasonable. Accordingly, because the district court did not “resolve conflicts in
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                                 No. 13-50106
the evidence,” and that evidence potentially “cuts against its conclusions, we
are compelled to vacate the district court’s decision dismissing the case, and
remand for further proceedings.” CTF Cent. Corp. v. Inter-Cont’l Hotels Corp.,
71 F.3d 877, at * 7 (5th Cir. 1995).
      (B)   Procedure on Remand
      In light of our determination that the district court improperly evaluated
the private interest factors, we do not address Ten Cate’s other allegations of
error. Instead, we vacate the district court’s order, and remand for further
proceedings consistent with this opinion so that the district court can again
exercise its discretion as to whether dismissal is warranted in the first
instance. The decision regarding whether or not to take additional evidence is
one that we leave to the sound discretion of the district court. As is standard
in such situations, we “intimate no view as to what ultimate decision the court
should make on the forum non conveniens issue.” Baris v. Sulpicio Lines, Inc.,
932 F.2d 1540, 1553 (5th Cir. 1991).


                                   CONCLUSION
      We VACATE the district court’s order, and REMAND for further
proceedings.




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