                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                  Nos. 15-1261, 16-1011
                                    _____________

                         JANE DOE; JOHN DOE, Parents and
                        Natural Guardians of Mary Doe, a minor,
                                                  Appellants

                                             v.

                   THE RITZ CARLTON HOTEL COMPANY, LLC
                                _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Civ. No. 5-14-cv-04423)
                   District Judge: Honorable Jeffrey L. Schmehl
                                 ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 13, 2016
                                  ______________

      Before: CHAGARES, GREENAWAY, JR., and RESTREPO, Circuit Judges.

                           (Opinion Filed: November 1, 2016)

                                     ______________

                                        OPINION *
                                     ______________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       Appellants Jane and John Doe initiated this action against Appellee The Ritz

Carlton Hotel Company, LLC, alleging that Appellee’s negligence resulted in two sexual

assaults on their minor daughter while the family was vacationing at one of Appellee’s

hotels in Grand Cayman, Cayman Islands. Appellants appeal orders of the United States

District Court for the Eastern District of Pennsylvania (1) dismissing their Amended

Complaint on forum non conveniens grounds and (2) denying their motion for special

relief brought pursuant to Federal Rule of Civil Procedure 60(b)(6). For the following

reasons, we will affirm the orders of the District Court.

                                  I.   BACKGROUND

       Appellants are residents of Pennsylvania who vacationed at The Ritz Carlton,

Grand Cayman hotel in the spring of 2013. Appellants allege that, on two separate

occasions, a bellman then employed by Appellee sexually assaulted Mary Doe,

Appellants’ minor daughter, at the hotel.

       Appellants brought suit in the Court of Common Pleas of Philadelphia County,

alleging that Appellee was negligent in failing to screen and conduct an adequate

background check on the bellman and in failing to provide security to its guests.

Appellee removed the case to federal court, invoking diversity jurisdiction, and filed a

motion to dismiss the Amended Complaint based on forum non conveniens. The District

Court concluded that trial of the action in the Eastern District of Pennsylvania would

result in an undue burden to Appellee out of proportion to Appellants’ convenience,




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granted Appellee’s motion, and dismissed the matter without prejudice. Appellants

appealed the District Court’s order.

       While their appeal was pending, Appellants retained new counsel and filed a

motion with the District Court pursuant to Federal Rule of Civil Procedure 60(b)(6)

seeking relief from the dismissal of their action on the grounds that their prior counsel

was grossly negligent in developing factual and legal arguments in opposition to

Appellee’s motion to dismiss. The District Court denied the motion and Appellants

appealed that order.

                II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

       “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). “[W]here the

[district] 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.; accord Kisano Trade & Invest Ltd. v. Lemster, 737 F.3d 869, 872 (3d Cir. 2013).

“Thus, ‘we do not perform a de novo resolution of forum non conveniens issues,’ and

instead review the District Court’s dismissal on grounds of forum non conveniens for an

abuse of discretion.” 737 F.3d at 872 (quoting Lacey v. Cessna Aircraft Co., 862 F.2d

38, 43 (3d Cir. 1988)). A district court abuses its discretion “when it clearly errs in

weighing the factors to be considered.” Windt v. Quest Commc’ns Int’l, Inc., 529 F.3d




                                              3
183, 189 (3d Cir. 2008) (quoting Lony v. E.I. Du Pont de Nemours & Co., 886 F.2d 628,

632 (3d Cir. 1989)).

       We review a district court’s denial of a Rule 60(b)(6) motion for abuse of

discretion. Cox v. Horn, 757 F.3d 113, 118 (3d Cir. 2014). In the context of a Rule

60(b)(6) motion, “[a] district court abuses its discretion when it bases its decision upon a

clearly erroneous finding of fact, an erroneous conclusion of law, or an improper

application of law to fact.” Id.

                                       III. ANALYSIS

       A. The District Court’s Forum Non Conveniens Determination

       Reviewing the District Court’s forum non conveniens determination for abuse of

discretion, we conclude that there was no clear error in the Court’s analysis.

       Although a “plaintiff’s choice of forum should rarely be disturbed,” Piper Aircraft

Co., 454 U.S. at 241, a district court may dismiss a case based on forum non conveniens

“[w]hen an alternative forum has jurisdiction to hear the case, and when trial in the

plaintiff’s chosen forum would establish . . . oppressiveness and vexation to a defendant .

. . out of all proportion to plaintiff’s convenience or when the chosen forum is

inappropriate because of considerations affecting the court’s own administrative and legal

problems,” Kisano Trade & Invest Ltd., 737 F.3d at 873 (quoting Windt, 529 F.3d at 189)

(internal quotation marks omitted). Four factors guide a district court’s exercise of

discretion in its forum non conveniens analysis: “(1) the amount of deference to be

afforded to plaintiffs’ choice of forum; (2) the availability of an adequate alternative

forum . . . ; (3) relevant private interest factors affecting the convenience of the litigants;


                                               4
and (4) relevant public interest factors affecting the convenience of the forum.” Id.

(internal quotation marks and footnotes omitted).

       Here, as to the first factor, the District Court correctly identified that a citizen

plaintiff’s choice of her home forum deserves “significant deference.” App. 7 (citing

Piper Aircraft Co., 454 U.S. at 255 (explaining “that there is ordinarily a strong

presumption in favor of the plaintiff’s choice of forum” and “that a plaintiff’s choice of

forum is entitled to greater deference when the plaintiff has chosen the home forum”)).

The District Court then reasoned that because “the operative facts giving rise to the action

occur[red] outside of the forum selected by” Appellants—i.e., occurred in the Cayman

Islands—that deference is “somewhat reduced.” App. 7. The Court cited several district

courts within the Third Circuit for this proposition; 1 however, we have never held that the

deference owed to a citizen or a resident plaintiff’s choice of forum is “somewhat

reduced” under such circumstances. Thus, we write to clarify that whether the operative

facts giving rise to a citizen or a resident plaintiff’s claim occurred in or outside of a

plaintiff’s chosen forum is properly considered in the balancing of private and public

interest factors—vis-à-vis, for example, the ease of access to sources of proof. Although

the District Court’s statement of law on this point was incorrect, we conclude that the




1
  We note that the cases relied upon by the District Court all involved the federal transfer
statute, 28 U.S.C. § 1404(a), and also that other district courts within our jurisdiction
have stated this proposition in the context of a forum non conveniens determination. See,
e.g., Lynch v. Hilton Worldwide, Inc., No. 11-cv-1362, 2011 WL 5240730, at *3 (D.N.J.
Oct. 31, 2011).


                                               5
erroneous statement does not amount to reversible error because the District Court

reasonably weighed the four factors.

       Appellants argue that because they are residents of Pennsylvania and because

Appellee is a large corporation with its principal place of business in adjacent Maryland,

these facts, standing alone, establish that litigating in Pennsylvania cannot be oppressive

or vexatious for Appellee. This position, however, ignores that “[a] citizen’s forum

choice should not be given dispositive weight,” Piper Aircraft Co., 454 U.S. at 255 n.23,

and that a “district court is accorded substantial flexibility in evaluating a forum non

conveniens motion,” with “[e]ach case turn[ing] on its facts,” Delta Air Lines, Inc. v.

Chimet, S.P.A., 619 F.3d 288, 294 (3d Cir. 2010) (quoting Van Cauwenberghe v. Biard,

486 U.S. 517, 529 (1988)).

       It would have been clear error for the District Court to have adopted Appellants’

position and given dispositive weight to Appellants’ choice of forum. Thus, the District

Court reasonably weighed the substantial deference afforded to Appellants’ chosen forum

of Pennsylvania against the other three factors.

       As to the second factor, the District Court reasonably concluded that the Cayman

Islands presented an adequate alternative forum because Appellee was amenable to

service of process there, the tort of negligence was recognized there, and the applicable

statute of limitations had not expired. See Piper Aircraft Co., 454 U.S. at 254 n.22

(“Ordinarily th[e alternative forum] requirement will be satisfied when the defendant is

amenable to process in the other jurisdiction.”) (internal quotation marks and citations

omitted); Kisano Trade & Invest Ltd., 737 F.3d at 873 (an adequate alternative forum is


                                              6
where, inter alia, “defendants are amenable to process and plaintiffs’ claims are

cognizable”).

       As to the third and fourth factors, the District Court reasonably weighed the

relevant public and private interest factors to conclude that dismissal of this matter was

appropriate because trial of the action in the Eastern District of Pennsylvania would result

in an undue burden on Appellee out of proportion to Appellants’ convenience. It was

reasonable for the Court to find that a “crucial” factor in its decision was the lack of

compulsory process for attendance of unwilling witnesses from the Cayman Islands and

the cost of obtaining willing witnesses. App. 9; see Kisano Trade & Invest Ltd., 737 F.3d

at 873 (listing the “ability to compel witness attendance if necessary” as a relevant private

interest).

       It was also reasonable for the District Court to conclude that factors favoring

dismissal—such as that any sources of proof as to Appellee’s potential negligence were

located in the Cayman Islands—outweighed factors favoring a Pennsylvania forum—

such as that most of the Pennsylvania-based witnesses identified by Appellants were

medical professionals whose testimony would become relevant only if Appellants were to

succeed on liability. See Kisano Trade & Invest Ltd., 737 F.3d at 873 (“Private interests

to consider include the ease of access to sources of proof . . . .”). We find no fault with

the District Court’s balancing of these factors.

       Appellants argue that the District Court erred as a matter of law because dismissal

of Appellants’ negligence action in favor of a Cayman Islands forum violates Appellants’

Seventh Amendment right to a jury trial. Specifically, Appellants assert that “because


                                              7
forum non conveniens was not a doctrine recognized under English common law in

1791[,]” it “therefore cannot act as a bar to the constitutionally preserved right to a jury

trial in [the United States].” (Appellants’ Br. at 30.) However, Appellants never

developed this argument before the District Court. Their opposition to Appellee’s motion

to dismiss contains one sentence identifying Appellants’ “constitutional right to a jury

trial” as a private interest disfavoring dismissal. See App. 106 (“[R]equiring the plaintiffs

to pursue their claims in the Cayman Islands would deprive them of their constitutional

right to a jury trial.”). Nor did Appellants develop this argument in their Rule 60(b)(6)

motion, which itself acknowledged that their prior briefing failed “to provide any legal

analysis or meaningful argument” regarding the issue. App. 197. Appellants’ position in

their Rule 60(b)(6) motion was that the “unavailability of a jury trial in an alternative

forum” should render that forum per se inadequate. App. 197.

       Because Appellants failed to develop this constitutional argument before the

District Court, we deem this argument forfeited. See In re Diet Drugs Prod. Liab. Litig.,

706 F.3d 217, 226 (3d Cir. 2013) (“It is axiomatic that arguments asserted for the first

time on appeal are deemed to be waived and consequently are not susceptible to review

in this Court absent exceptional circumstances.” (quoting Tri-M Grp., L.L.C. v. Sharp,

638 F.3d 406, 416 (3d Cir. 2011)); United States v. EME Homer City Generation, L.P.,

727 F.3d 274, 300 (3d Cir. 2013) (citing Steagald v. United States, 451 U.S. 204, 209

(1981) for the proposition that “arguments not developed in district court are forfeited on

appeal”).




                                              8
       To the extent that Appellants argue that the District Court failed to give

appropriate weight to the fact that a jury trial is not guaranteed in the Cayman Islands, we

disagree. The District Court did not clearly err when it did not consider the lack of a jury

trial guarantee in the Cayman Islands to be a dispositive factor precluding dismissal for

forum non conveniens. Rather, the Court reasonably concluded that Appellants’ potential

deprivation of a jury trial was tempered by the fact that “although most cases are tried to

a judge in the Cayman Islands, an application or request can be made for a jury trial.”

App. 24; see App. 625 (Section 21 of the Cayman Islands’ Judicature Law, providing that

a party to a civil case may apply for a trial by jury). 2

       In sum, the District Court did not abuse its discretion in its forum non conveniens

determination.

       B. The District Court’s Denial of Appellants’ Rule 60(b)(6) Motion

        We also conclude that the District Court did not abuse its discretion in denying

Appellants’ Rule 60(b)(6) motion.

       Rule 60(b)(6) is a catchall provision that allows a court to relieve a party from the

effects of an order for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).

2
  To the extent Appellants argued below that the lack of a jury trial guarantee per se
renders the Cayman Islands an inadequate alternative forum, we reject this argument.
“An adequate forum need not be a perfect forum.” Satz v. McDonnell Douglas Corp.,
244 F.3d 1279, 1283 (11th Cir. 2001). And here, notwithstanding the possibility that
Appellants’ tort claim will be heard in the Cayman Islands by a judge rather than a jury,
Appellants have not demonstrated, for example, that “the remedy provided by the
alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all,”
Piper Aircraft Co., 454 U.S. at 254 (emphasis added), or that the Cayman Islands’ legal
system is “so corrupt that it can[not] serve as an adequate forum,” Stroitelstvo Bulgaria
Ltd. v. Bulgarian-American Enterprise Fund, 589 F.3d 417, 421 (7th Cir. 2009).


                                                9
To justify relief under Rule 60(b)(6), the party must show “extraordinary circumstances

where, without such relief, an extreme and unexpected hardship would occur.” Norris v.

Brooks, 794 F.3d 401, 404 (3d Cir. 2015) (quoting Sawka v. Healtheast, Inc., 989 F.2d

138, 140 (3d Cir. 1993)). We have found such “extraordinary circumstances” where a

client was “victimized by his attorney’s extreme negligence.” Carter v. Albert Einstein

Med. Ctr., 804 F.2d 805, 807 (3d Cir. 1986) (citing Boughner v. Sec’y of Health, Educ. &

Welfare, 572 F.2d 976, 978 (3d Cir. 1978) (finding that Rule 60(b)(6) relief was

warranted when an attorney had displayed “neglect so gross that it is inexcusable” in

failing to respond to fifty-two motions for summary judgment, which precluded an

adjudication on the merits of his clients’ claims)).

       The District Court considered Appellants’ five arguments that their prior counsel

was grossly negligent in opposing Appellee’s motion to dismiss and concluded that the

complained of actions or omissions did not rise to the level of gross negligence requiring

Rule 60(b) relief. 3 On appeal, Appellants argue that the District Court abused its

discretion by “parcel[ing] each allegation on its own” without considering counsel’s

conduct as a whole. (Appellants’ Br. at 34.) We are not persuaded. The District Court


3
  Appellants reassert the five grounds on appeal, arguing that their prior counsel failed to:
(1) “fully explore and cite relevant caselaw on the applicable legal standard regarding the
level of deference afforded to an American plaintiff’s choice of home forum”;
(2) “establish a record[] upon which th[e] Court could have balanced the private factor
interests of the Plaintiffs”; (3) “address whether the Cayman Islands should be considered
an adequate alternative forum”; (4) “explore the Constitutional issue of the loss of
[Appellants’] right to a jury trial”; and (5) “adequately represent[] his clients’ interests by
apparently putting his and his firm’s interests above the best interests of the Doe family.”
(Appellants’ Br. at 38.)


                                              10
did not clearly err when it addressed individually Appellants’ five arguments and

explained why some arguments lacked merit and others, even if given “full credence,”

did not rise to the level of gross negligence articulated in Boughner. App. 25. Moreover,

we agree with the District Court that the complained of actions or omissions of

Appellants’ prior counsel did not constitute gross negligence “amount[ing] to nothing

short of leaving [Appellants] unrepresented” so as to require reversal. Boughner, 572

F.2d at 977.

                                  IV. CONCLUSION

      For the foregoing reasons, we will affirm the orders of the District Court.




                                           11
