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Zhao v. Ye

United States District Court, D. Oregon, Portland Division

May 6, 2015

(Kevin) ZHAO, and FEI-CUI (Faye), individuals, Plaintiffs,
GUO QIANG YE (William) and JIN XU, husband and wife, ZHENYONG WANG, an individual, UANGO.COM, LTD., an Oregon corporation, FENCONN TECH CO., LTD., an Oregon corporation, FUJI CHINA HOLDINGS CO., LTD., a corporation, Defendants.


MICHAEL W. MOSMAN, District Judge.

Plaintiffs seek reconsideration of my September, 2014 decision to dismiss this case on the grounds of forum non conveniens. On April 7, 2015, I held a motion hearing concerning Plaintiffs' Motion for Reconsideration [170]. For the reasons stated on the record and in this opinion and order, I DENY Plaintiffs' motion [170]. This case remains closed and my prior amended judgment [102] dismissing this action remains in effect.


On September 29, 2014, I issued an Opinion and Order [100] dismissing this case on the grounds of forum non conveniens because I found that an adequate alternative forum exists for both Plaintiffs in China. On October 3, 2014, Plaintiffs filed a Motion for Stay of Judgment and Amended Judgment Pending Appeal [103], and shortly thereafter, on October 27, 2014, Plaintiffs filed a Motion for Reconsideration [118]. On November 4, 2014, oral argument was held concerning these motions [135]. For the reasons stated on the record, I DENIED AS MOOT Plaintiffs' Motion for Stay of Judgment and DENIED Plaintiffs' Motion for Reconsideration [136]. On November 26, 2014, Plaintiffs filed a Supplemental Motion for Reconsideration [140]. On January 21, 2015, I DENIED that motion [158] and scheduled a hearing concerning the status of the parties' litigation in China. On February 17, 2015, Plaintiffs filed another Motion for Reconsideration [163].


When dismissing a case onforum non conveniens grounds, a court must first look at the adequacy and availability of the foreign remedy afforded, while also balancing the private and public interest factors that have been set-forth by relevant case law. See Gemini Capital Group, 150 F.3d 1088, 1092-94 (9th Cir. 1998). Private interest factors include: (1) the residence of the parties and witnesses; (2) the forum's convenience to the litigants; (3) evidentiary considerations; and (4) enforceability of the judgment. See Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1229-32 (9th Cir. 2011) (citing Boston Telecom. Group, Inc. v. Wood, 588 F.3d 1201, 1206-07 (9th Cir. 2009)). The public interest factors include: (1) the local interest in resolving the controversy; and (2) other judicial considerations, such as the court's familiarity with the governing law, court congestion, the burden on local courts and additional imposition of jury duty on the community, the costs of resolving a dispute unrelated to a particular forum, and avoiding conflict oflaw problems. See Carijano, 643 F.3d at1232-34. See also Gemini, 150 F.3d at 1094; Boston Telecom., 588 F.3d at 1211. As already discussed in my prior Opinion and Order [100], after determining that China's is an adequate forum and weighing the private and public consideration factors, I hold that China is the proper jurisdiction for this litigation.

I. China as an Adequate Available Forum

Several arguments have been raised by Plaintiffs challenging my forum non conveniens analysis; chief among them is whether China is an adequate available forum for this litigation. The requirement that an alternative forum must offer some remedy for a plaintiffs harm is "easy to pass; typically, a forum will be inadequate only where the remedy provided is so clearly inadequate or unsatisfactory, that it is no remedy at all.'" Carijano, 643 F.3d at 1225-26 (quoting Tuazon v. R.J Reynolds Tobacco Co., 433 F.3d 1163, 1178 (9th Cir. 2006)). As I have previously noted, the Ninth Circuit has instructed courts to "ask only whether some remedy exists; whether the remedy afforded is less favorable in the foreign forum is not determinative." Neuralstem, Inc. v. ReNeuron, Ltd., 365 F.App'x 770, 771 (9th Cir. 2010) (citing Lueckv. Sundstrand Corp., 236 F.3d 1137, 1143-44 (9th Cir. 2001)). Although Plaintiffs argue about the adequacy of the Chinese legal system, I find that China provides the parties in this action with an adequate remedy.

"Ordinarily, to show an available forum, all that is required is that the defendant is amenable to service of process in the foreign jurisdiction." Gutierrez v. Advanced Medical Optics, Inc., 640 F.3d 1025, 1029-1030 (9th Cir. 2011) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22 (1981)). In the early stages of this dispute, Defendants consented to jurisdiction and stipulated to service of process in China. More importantly, the parties have already begun litigating this dispute in two separate cases brought by Defendant William in China-in Shanghai for Plaintiff Kevin and in Beijing for Plaintiff Faye. In fact, Faye has already received a judgment in her favor, which has been affirmed by the Beijing First Intermediate People's Court of Final Appeal.

On January 9, 2015, the Shanghai Municipal Court issued a notice ofrejection concerning William's Complaint over questions of Kevin's residency in Guangzhou and citizenship in Shanghai. Because my prior opinion and order included a "return-jurisdiction" clause to become effective in the event the Chinese court declined jurisdiction, this specific notice has largely been the focus of Plaintiffs' motions for reconsideration. However, on March 24, 2015, the Shanghai Municipal Second Intermediate People's Court of Appeals reversed the lower court, finding that Kevin's "place of permanent registered residence... is... Shanghai... and the court of the first instance shall have jurisdiction over this case." Def.'s Status Report, p. 2-3 [174].

Unlike in Gutierrez-where the plaintiffs' case was dismissed in the United States on the basis of forum non conveniens only to later be dismissed by the Mexican courts for lack of jurisdiction-our Plaintiffs' cases have been accepted, and in Faye's case, already resolved in her favor. As the Ninth Circuit noted in Gutierrez, "[a]t its core, the doctrine offorum non conveniens is concerned with fairness to the parties.... Here, to simply affirm the district court without acknowledging that Plaintiffs do not have a forum in which to bring their case would, apparently be to leave their horrific injuries wholly unredressed." 640 F.3d at 1030. Considering the fact that one Plaintiff has already received a judgment in her favor and the second Plaintiff has had a Chinese appellate court confirm jurisdiction in his case, no strong justifications remain for this court to retain jurisdiction for lack of an available forum.

II. Private Interest Factors

The private interest factors to be considered by a court when conducting a forum non ...

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