                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                     July 9, 2004
                     _______________________
                                                          Charles R. Fulbruge III
                             No. 03-30622                         Clerk
                       _______________________

         BROKERWOOD PRODUCTS INTERNATIONAL (U.S.), INC.,

                  Plaintiff-Appellant/Cross-Appellee

                                  v.

                        CUISINE CROTONE, INC.,

                        Defendant - Appellee,

                      EXPORT DEVELOPMENT CANADA,

                  Defendant-Appellee/Cross-Appellant

                       --------------------
          Appeals from the United States District Court
              for the Eastern District of Louisiana
                           (02-CV-1152)
                       --------------------

Before JONES, WIENER and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:*

     Brokerwood Products International (U.S.), Inc. (“Brokerwood

U.S.”) appeals from a forum non conveniens dismissal of its

lawsuit against two Canadian companies, Cuisine Crotone, Inc.

(“Cuisine”)and Export Development Canada (“EDC”).      Because the

district court did not abuse its discretion in dismissing the

claims against Cuisine, we affirm its forum non conveniens ruling

to that extent.    We reverse, however, the district court’s ruling

     *
      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this opinion should not be published and is not precedent except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.

                                   1
that EDC had waived its objections to personal jurisdiction, and

we conclude that the district court should have dismissed the

claims against EDC for lack of personal jurisdiction.

Background

     Brokerwood U.S. is a Louisiana corporation affiliated with a

Canadian corporation, Brokerwood Products International (Canada),

Inc. (“Brokerwood Canada”).    Both Brokerwood companies act as

agents in selling Canadian-manufactured cabinet products.

Brokerwood U.S. imports Canadian cabinets and sells them in the

United States.   Both Brokerwood corporations (and the other

related entities) are owned by William and Janet Shiell, who are

also Brokerwood U.S.’s sole employees.    The Shiells own a total

of six related companies, located both in the United States and

Canada.   The Shiells claim dual United States-Canadian

citizenship, and both divide their time between Canada and the

United States.   While Brokerwood U.S. has an office in Louisiana,

Brokerwood Canada is based in Montreal.    A written letter from

all six related Shiell companies, including Brokerwood U.S.,

indicates that the international head office for all the

companies is in Montreal and that at least one of the officers

can always be reached there.

     As part of its business, Brokerwood Canada entered into an

agency agreement with a company called Boiseries Crotone, Inc.

Appellee Cuisine later assumed Boiseries Crotone’s obligations



                                  2
under this agreement.    Cuisine is a Canadian corporation; all of

its employees work and live in Canada.

     Under the agency agreement, Brokerwood Canada was to act as

an exclusive agent for United States cabinetry sales.    The

contract anticipated that Brokerwood Canada would use sub-agents,

including Brokerwood U.S.    The relationship between the

Brokerwood entities and Cuisine eventually turned sour, with each

side alleging that the other failed to comply with their

agreement.

     Appellee-Cross-Appellant EDC is a Canadian Crown corporation

solely owned by the Canadian government.    As part of an effort to

promote Canadian exports, EDC provides credit risk insurance to

Canadian manufacturers that export goods.    In November 2000,

however, EDC stopped insuring invoices to Brokerwood U.S.,

essentially preventing Brokerwood U.S. from obtaining Canadian

cabinets on credit.    Brokerwood U.S. alleges that Cuisine caused

EDC’s actions by providing EDC with false information about

Brokerwood U.S.’s payment history.

     Brokerwood U.S. originally sued Cuisine and EDC in Louisiana

state court.    Cuisine timely removed the case to federal court.1

This suit alleges that Cuisine (1) breached its contracts with

Brokerwood U.S. by delivering products late and delivering sub-

standard products; (2) improperly used Brokerwood U.S.’s customer


     1
         EDC had not been served when Cuisine removed the case.

                                  3
lists; and (3) violated the Louisiana Unfair Trade Practices and

Consumer Protection Law, LA. REV. STAT. ANN. § 51:1401 et seq.

     The Louisiana suit was followed by two others in Canada.

Cuisine sued Brokerwood U.S. in June 2002, and on July 8, 2002,

Brokerwood Canada sued Cuisine for commissions allegedly due

under the Agency Agreement.    In the Cuisine-brought suit,

Brokerwood U.S. lost a challenge to the Canadian court’s personal

jurisdiction over it.    In that suit, Brokerwood U.S. filed

counterclaims, including some for failure to pay commissions.

     In July 2002, around the time that the second Canadian suit

was filed, EDC answered the Louisiana suit.    Cuisine and EDC

filed their initial disclosures shortly thereafter.    Cuisine and

EDC served discovery requests and filed a motion to strike

Brokerwood U.S.’s jury demand.    Little else happened until

December 2002, when Brokerwood U.S.’s counsel filed a motion to

withdraw, and Brokerwood U.S.’s current lawyers stepped in.

Brokerwood U.S.’s new lawyers moved for a continuance of the

April 2003 trial date.    The district court granted this motion

over Cuisine’s and EDC’s opposition.

     In mid-December, Cuisine filed a motion to preclude, in

which it sought to prevent Brokerwood U.S. from calling expert

witnesses, from calling witnesses other than those already

disclosed, and from presenting evidence on lost profits.      The

district court denied this motion.

     After this denial, both Cuisine and EDC filed motions to

                                  4
dismiss for forum non conveniens.    At the same time, EDC also

filed a motion to dismiss for lack of personal jurisdiction.2

The district court held a hearing on both motions.   In May 2003,

the court denied EDC’s personal jurisdiction motion, ruling that

EDC had waived that issue, but granted both parties’ motions to

dismiss based on forum non conveniens.    In response, Brokerwood

U.S. filed a motion for new trial.   After conducting another

hearing, the district court denied Brokerwood U.S.’s motion.

Brokerwood U.S. timely filed a notice of appeal.   EDC filed a

notice of cross-appeal.

Personal Jurisdiction: Waiver

     The district court concluded that EDC waived its personal

jurisdiction objection by not moving to dismiss the case until

February 2003 – seven months after it filed its answer and

approximately one month after the district court denied Cuisine’s

motion to preclude.

     Federal Rule of Civil Procedure 12(h)(1) provides, in part,

that a defendant waives its personal jurisdiction defense if the

defense “is neither made by motion under this rule nor included

in a responsive pleading or an amendment thereof permitted by

Rule 15(a) to be made as a matter of course.”   EDC complied with

Rule 12(h)(1) by including its objections to personal

jurisdiction in its answer.

     2
       Cuisine did not challenge the district court’s
jurisdiction.

                                5
     Nevertheless, in several cases other circuits have concluded

that a defendant may waive a properly-pleaded personal

jurisdiction defense by failing to pursue the defense after

including it in an answer.3    In reaching its waiver conclusion

here, the district court relied on one of these cases, Yeldell v.

Tutt, 913 F.2d 533 (8th Cir. 1990).     In Yeldell, the defendants

“provided no more than a bald assertion in their answer that the

court lacked personal jurisdiction over them.” Id. at 539.      They

proceeded through discovery, motions, a trial, and post-trial

motions, all without raising their objections to personal

jurisdiction.    Id.   In fact, the Yeldell defendants did not raise

the issue again until appeal.     Id.   The Eighth Circuit concluded

that the defendants had waived their jurisdictional defense,

holding “that their conduct in delaying consideration of this

threshold issue manifests an intent to submit to the court’s

jurisdiction.”   Id.

     Conduct short of waiting until appeal to litigate the

defense has resulted in waiver.    For example, a defendant waived

its jurisdictional defense by suing the plaintiff in the

objectionable forum in a second suit involving the same facts.

Gen. Contracting & Trading Co., L.L.C. v. Interpole, Inc., 940


     3
      This circuit has discussed, in dicta, the existence of “the
well-established rule that parties who choose to litigate
actively on the merits thereby surrender any jurisdictional
objections.” PaineWebber Inc. v. Chase Manhattan Private Bank
(Switzerland), 260 F.3d 453, 459 (5th Cir. 2001).

                                   6
F.2d 20, 23 (1st Cir. 1991).    In another case, the defendants

filed their motion to dismiss for lack of personal jurisdiction

only after their motion for summary judgment on their

counterclaim had been denied.     Bel-Ray Co., Inc. v. Chemrite

Ltd., 181 F.3d 435, 443-44 (3d Cir. 1999).    The court in Bel-Ray

determined that the defendants had subjected themselves to

jurisdiction by moving for summary judgment on their own claims

for relief.    Id.   In the Ninth Circuit, a court may find waiver

of personal jurisdiction if the defendant has complied with Rule

12 only when there are “other factors militating in favor of a

finding of waiver.”     Peterson v. Highland Music, Inc., 140 F.3d

1313, 1319 (9th Cir. 1998).    The Peterson court gave an example

of such an other factor:

     if a defendant were to engage in "sandbagging" by raising
     the issue of personal jurisdiction on a motion to
     dismiss, deliberately refraining from pursuing it any
     further when his motion is denied in the hopes of
     receiving a favorable disposition on the merits, and then
     raising the issue again on appeal only if he were unhappy
     with the district court's ultimate decision, then we
     would not hesitate to find that the defendant had waived
     any right to pursue the defense.

Id. at 1318.

     Here, the district court determined that EDC’s actions

waived its defense:

     [p]rior to filing the motion to dismiss EDC participated
     in a scheduling conference, provided initial disclosure,
     filed a motion to strike the jury demand (which was ruled
     on by the court), and filed interrogatories, requests for
     production, and a witness list.        EDC’s actions in
     extensively participating in the litigation do not
     reflect a continuing objection to this court’s power to

                                   7
     exercise jurisdiction over its person.

Although we do not state a bright-line rule, we disagree with the

district court and conclude that EDC did not waive its personal

jurisdiction objection.   EDC’s actions, particularly considering

that it continued to note its objection to jurisdiction at the

preliminary conference and in its discovery responses, do not

rise to the level of “sandbagging,” or participation that would

cause waiver.   EDC did not file any counterclaims, much less seek

adjudication on the merits of any claims.       A total of seven

months passed between EDC’s answer and its motion to dismiss,

unlike the two and a half years of active litigation in another

waiver case, Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297

(7th Cir. 1993)(finding waiver).       Furthermore, the case was

dormant during most of that time.       EDC raised its objections in a

motion before the district court; it did not wait until appeal,

like the defendant in Yeldell.     We are left with only an

allegation of strategic timing: that EDC waited until Cuisine’s

motion to preclude had been denied.       This is not enough to waive

EDC’s jurisdictional challenge.

The Substance of EDC’s Challenge to Personal Jurisdiction

     The district court, having found waiver, did not reach the

substance of EDC’s personal jurisdiction challenge.       We address

the merits of that challenge now.

     Personal jurisdiction over an out-of-state defendant is



                                   8
determined by both the state’s long-arm statute and the Due

Process Clause.   ICEE Distrib., Inc. v. J&J Snack Foods, 325 F.3d

586, 591 (5th Cir. 2003).      The Louisiana long-arm statute

“extends jurisdiction over nonresidents to the extent allowed by

federal due process.”    Id.    Thus, we need only examine whether

the exercise of jurisdiction over EDC in Louisiana would offend

due process.

     Due process permits a court to exercise jurisdiction over a

nonresident defendant only if two requirements are met.      First,

the defendant must have sufficient minimum contacts with the

forum so that he would reasonably anticipate being pulled into

court in that forum.     Gundle Lining Constr. Corp. v. Adams County

Asphalt, Inc., 85 F.3d 201, 204 (5th Cir. 1996).      Second, the

exercise of jurisdiction in the forum must not offend

“traditional notions of fair play and substantial justice.” Id.

(quoting Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102.

113 (1987)).   Minimum contacts fall into two different

categories: contacts sufficient to establish general personal

jurisdiction in the forum and those sufficient to establish

specific jurisdiction.     Alpine View Co. v. Atlas Copco AB, 205

F.3d 208, 215 (5th Cir. 2000).      Specific jurisdiction arises when

the defendant “has purposefully directed its activities at the

forum state and the ‘litigation results from alleged injuries

that 'arise out of or relate to' those activities.’" Id. (quoting

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).

                                    9
“General jurisdiction, on the other hand, will attach where the

nonresident defendant's contacts with the forum state, although

not related to the plaintiff's cause of action, are ‘continuous

and systematic.’” Alpine View, 205 F.3d at 215 (quoting

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,

415-16 (1984)).    Brokerwood U.S. contends that the district court

had both specific and general jurisdiction over EDC.

Specific Jurisdiction

     Brokerwood U.S. bases its specific jurisdiction argument on

the idea that the effects of EDC’s actions were felt in

Louisiana.    In particular, Brokerwood U.S. argues that EDC’s

refusal to cover its receivables affected its ability to do

business and that Brokerwood, as a Louisiana company, felt this

harm in Louisiana.    Because of this connection, Brokerwood U.S.

contends that jurisdiction is appropriate in Louisiana.    To

support this contention, Brokerwood U.S. relies on the “effects

test” found in Calder v. Jones, 465 U.S. 783 (1984).    In Calder,

the Supreme Court concluded that libel defendants could be

subject to personal jurisdiction in California because it was

“the focal point both of the story and of the harm suffered.

Jurisdiction over petitioners is therefore proper in California

based on the ‘effects’ of their Florida conduct in California.”

Id. at 789.    Brokerwood U.S. omits, however, reference to other

cases that indicate that a party may not rely solely on effects

within the forum state.

                                 10
      Foreseeable effects are part of the specific jurisdiction

analysis.   But they are only one part: “[f]oreseeable injury

alone is not sufficient to confer specific jurisdiction, absent

the direction of specific acts toward the forum.”    Wien Air

Alaska, Inc. v. Brandt, 195 F.3d 208, 212 (5th Cir. 1999).

Furthermore, “the effects test is not a substitute for a

nonresident's minimum contacts that demonstrate purposeful

availment of the benefits of the forum state.”    Allred v. Moore &

Peterson, 117 F.3d 278, 286 (5th Cir. 1997).

      Wien Air describes the effects test and also provides an

example of when it can be used to establish jurisdiction.    In

Wien Air, the nonresident defendant

      performed several tortious actions outside of Texas
      directed towards [plaintiff] in Texas. These actions had
      foreseeable effects in the forum and were directed at the
      forum. These contacts take the form of letters, faxes,
      and phone calls to Texas by [defendant] whose contents
      contained fraudulent misrepresentations and promises and
      whose contents failed to disclose material information.
      For example, [plaintiff] provides a sworn affidavit from
      its employee Ms. Long stating that numerous calls,
      letters and faxes were made by [defendant] to [plaintiff]
      in Texas, and she avers that these calls contained the
      promises, assurances, and representations that are at the
      heart of the lawsuit.

Id.   That situation contrasts with the situation here.

Brokerwood U.S. has only alleged effects – damages – and has not

alleged or presented any evidence that EDC intentionally directed

its conduct toward Louisiana.   Therefore, Brokerwood U.S. cannot

establish that the district court had specific jurisdiction over



                                 11
EDC.4

General Jurisdiction

        General jurisdiction’s “continuous and systematic contacts

test is a difficult one to meet, requiring extensive contacts

between a defendant and a forum.”       Submersible Sys., Inc. v.

Perforadora Cent., S.A. de C.V., 249 F.3d 413, 419 (5th Cir.

2001) (citing 16 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶

108.41[3] (3d ed. 1999)).     Brokerwood U.S. attempts to meet this

standard by presenting a list of EDC’s contacts with Louisiana.

According to Brokerwood U.S., EDC’s continuous and systematic

contacts consist of sending three demand letters to Louisiana

companies – one written by EDC and the other two written by one

of EDC’s agents; filing one lawsuit in Louisiana to recover

payment; negotiating a loan with a Louisiana entity; and

marketing itself internationally (including in Louisiana) on its

website.     These contacts do not reach the level of extensive

systematic and continuous contacts required for general

jurisdiction.5

        4
      The plaintiff has the burden of establishing jurisdiction
over the nonresident defendant. Gundle Lining, 85 F.3d at 204.
        5
      See, e.g., Wilson v. Belin, 20 F.3d 644, 650-51 (5th Cir.
1994)(even if possibly continuous, defendant’s contacts were not
substantial enough for general personal jurisdiction); Cent.
Freight Lines, Inc. v. APA Transp. Corp., 322 F.3d 376, 381 (5th
Cir. 2003) (no general jurisdiction in Texas even though
defendant “routinely arranges and receives interline shipments to
and from Texas and apparently sends sales people to the state on
a regular basis to develop business, negotiate contracts, and
service national accounts”).

                                   12
       Brokerwood U.S. has not established that EDC was subject to

personal jurisdiction in Louisiana.   Thus, suit in Louisiana was

improper, and the claims against EDC should have been dismissed

for lack of personal jurisdiction.

Forum non conveniens

       The forum non conveniens doctrine focuses on convenience.

Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 342 (5th

Cir. 1999).    The doctrine “presupposes at least two forums where

the defendant is [amenable] to process and simply furnishes

criteria for choice between them.”    Id.   With this choice, the

plaintiff’s initial choice of forum is usually respected.      Id. at

342.    As a doctrine, forum non conveniens is committed to the

district court’s discretion.    Piper Aircraft Co. v. Reyno, 454

U.S. 235, 257 (1981).    That court’s forum non conveniens

decision, therefore, “deserves substantial deference” and is only

reversed for a clear abuse of discretion.     Baumgart v. Fairchild

Aircraft Corp., 981 F.2d 824, 835 (5th Cir. 1993) (quoting Piper

Aircraft, 454 U.S. at 257).

       A forum non conveniens inquiry has several steps.    First,

the defendant invoking the doctrine must establish that an

alternate forum is both available and adequate.      An available

forum is one where the case and all the parties can come within

its jurisdiction.    Alpine View, 205 F.3d at 221.    An adequate

forum is one in which “differences in that forum’s laws would not



                                 13
deprive the plaintiff of all remedies or result in unfair

treatment.”   Empresa Lineas Maritimas Argentinas, S.A. v.

Schichau-Unterweser, A.G., 955 F.2d 368, 372 (5th Cir. 1992).

     Having established an available and adequate forum, the

defendant must then show that certain private factors support

dismissal.    McLennan v. Am. Eurocopter Corp., Inc., 245 F.3d 403,

424 (5th Cir. 2001).   These private factors are:

     (1) the relative ease of access to sources of proof; (2)
     the availability of compulsory process for attendance of
     unwilling, and the costs of obtaining attendance of
     willing, witnesses; (3) probability of an opportunity to
     view the premises, if view would be appropriate to the
     action; and (4) other factors affecting the ease, speed,
     and expense of trial or the enforceability of a judgment
     if obtained.

Baumgart, 981 F.2d at 835-36 (footnote omitted).     When examining

these factors, the court should also consider the timeliness of

the defendant’s motion.     Id.

     If these private interest factors do not indicate that

another forum is better suited for trial of the case, the court

should then examine certain public interest factors.      Baumgart,

981 F.2d at 837.   If the private interest factors do, however,

weigh in favor of dismissal, then the court does not need to

consider the public ones.     Id.   The public interest factors are:

     [T]he administrative difficulties flowing from court
     congestion; the ‘local interest in having localized
     controversies decided at home’; the interest in having
     the trial of a diversity case in a forum that is at
     home with the law that must govern the action; the
     avoidance of unnecessary problems in conflict of laws,
     or in the application of foreign law; and the
     unfairness of burdening citizens in an unrelated forum

                                    14
     with jury duty.

Dickson Marine, 179 F.3d at 342.

     In this case, the district court concluded that Canada was

both an available and adequate forum.   Continuing on, the

district court determined that the private factors weighed in

favor of dismissal and that the litigation’s focal point was

Canada.   Although it was not required to, the district court also

considered the public interest factors and concluded that

Canadian courts would be “in a better position to streamline the

litigation.”

Available and Adequate Forum

     Brokerwood U.S. first challenges the district court’s

conclusion that Canada is an available and adequate forum.

Concerning availability, it does not contend that Cuisine and EDC

cannot come within the Canadian court’s jurisdiction, but rather

that Brokerwood U.S. should not have to submit to jurisdiction,

which it challenged (and lost) in one of the other Canadian

suits.    Nevertheless, Brokerwood U.S.’s preference not to sue in

Canada does not make Canada an unavailable forum when the

defendants are both subject to personal jurisdiction there.

     Brokerwood U.S. also argues that Canada is not an adequate

forum because the Canadian court has the discretionary authority

to order Brokerwood U.S. to post a cost bond.   Yet, the

possibility of a bond is not the kind of difference that makes a



                                 15
forum inadequate.   Mere differences in the foreign forum’s law do

not automatically render a foreign forum inadequate, so long as

the plaintiff is not deprived of all remedies, or is not limited

to a clearly unsatisfactory remedy.      Gonzalez v. Chrysler Corp.,

301 F.3d 377, 380 (5th Cir. 2002).      In fact, a forum may be

adequate even if the party’s claim would be economically unviable

in that forum.   See id. at 383.    In light of this precedent, a

discretionary bond, while possibly increasing the cost of

litigation, does not deprive Brokerwood U.S. of a remedy or cause

it to be treated unfairly.    The possibility of a bond does not

make Canada an inadequate forum, and the district court did not

clearly abuse its discretion in concluding that Canada was both

an available and adequate forum.

Private Interest Factors

     The dispute over the private interest factors primarily

comes down to two factors – the availability of witnesses and

timeliness.

     Of the two, timeliness causes us more concern.      A defendant

must make its forum non conveniens motion “within a reasonable

time after the facts or circumstances which serve as the basis

for the motion have developed and become known or reasonably

knowable to the defendant.”    In re Air Crash Disaster near New

Orleans, La., 821 F.2d 1147, 1165 (5th Cir. 1987) (en banc),

vacated on other grounds sub nom., Pan Am. World Airways, Inc. v.



                                   16
Lopez, 490 U.S. 1032 (1989).   A defendant’s delay in filing a

forum non conviens motion will not result in waiver, but delay

does weigh heavily against granting the motion.    Id.

     The parties extensively argued about timeliness in the

hearing before the district court.    Although the district court

did not expressly address timeliness in the order granting the

forum non conveniens motion or on the motion to reconsider, in

light of the extensive argument, we agree with the parties that

the court implicitly denied Brokerwood U.S.’s timeliness

argument.

     The timeliness issue presents a close call, with strong

arguments running in both directions.   Although this case had

been on file for some time, it had been fairly inactive, with

little discovery taking place.   As Brokerwood U.S. argues, EDC’s

and Cuisine’s actions might give the appearance of gamesmanship

because they did not file their motions until after the court

denied Cuisine’s motion to preclude much of Brokerwood U.S.’s

evidence.   In their defense, EDC and Cuisine argue that they did

not realize the similarities in the cases until after Brokerwood

U.S. supplemented its discovery responses to specify that it

sought recovery for some of the same commissions it had sought in

the Canadian lawsuit.

     Turning to witnesses, the district court determined that the

location and availability of witnesses weighed in favor of the

Canadian forum.   Challenging this determination, Brokerwood U.S.

                                 17
contends that its pre-trial order inserts included a list of its

own will-call witnesses, at least half of whom resided closer to

Louisiana than to Canada.   Because many of these witnesses were

in states other than Louisiana, Brokerwood U.S. cites Rivendell

Forest Products, Ltd. v. Canadian Pacific Ltd., 2 F.3d 990, 993

n.5 (10th Cir. 1993), to argue that witness availability is a

neutral factor.   There are some similarities.   The Rivendell

court noted that when much of its case’s proof was in Minnesota,

it would be difficult to see how British Columbia would be more

convenient than Colorado, the plaintiff’s selected forum.    Id.

Brokerwood U.S. similarly argues that some of its witnesses, as

the list reflects, are in states other than Louisiana.    But at

the time of the motion, Brokerwood U.S. had not supplemented its

witness list and the location of these witnesses was not before

the district court.

     More importantly, Brokerwood U.S.’s argument ignores the

fact that Cuisine’s and EDC’s employees were all in Canada, and

that the Shiells – regardless of whether they are domiciled in

Montreal or New Orleans – split their time between Canada and

Louisiana.   The district court did not err in concluding that the

availability of witnesses suggests that Canada would be a better

forum.

     The district court balanced the relevant private interest

factors and concluded that this case belongs in Canada.    Although

close, timeliness does not so alter the balance of the private

                                18
interest factors as to justify overriding the district court’s

discretion.6      Thus, we cannot conclude that the district court

clearly abused its discretion in dismissing this case.

Conclusion

       For these reasons, we vacate the district court’s order

denying EDC’s motion to dismiss for lack of personal jurisdiction

and remand to the district court to dismiss the claims against

EDC.       We affirm the district court’s order dismissing the claims

against Cuisine based on forum non conveniens.

VACATED in part, AFFIRMED in part.




       6
      Because the private interest factors favor dismissal, we do
not examine the public interest factors. Baumgart, 981 F.2d at
837.

                                    19
