Opinion
Civil Action No. 3:04-CV-0893-G.
November 5, 2004
MEMORANDUM ORDER
Before the court is the motion of the defendant Nicholas Bredimus ("Bredimus") to dismiss the claims against him on the basis of forum non conveniens. For the following reasons, the motion to dismiss is granted.
I. BACKGROUND
This action was filed by three plaintiffs — Ampa Punyee, on behalf of her minor child John Doe # 1, Pongsri Surinpoa, on behalf of her minor child John Doe #2, and Pranom Seanmai, on behalf of his minor child John Doe #3 (collectively, the "plaintiffs") — who are the parents of minor children and resident citizens of Thailand. Plaintiffs' Original Complaint ("Complaint") ¶¶ 1-3; Plaintiffs' Response to Defendant's Motion to Dismiss on Grounds of Forum Non Conveniens ("Plaintiffs' Response") at 1. The three minor children, on whose behalf this case is brought, allege that they are victims of Bredimus's intentional and deliberate sexual assault which resulted in severe physical and emotional injury to them. Plaintiffs' Response at 1.
Bredimus has acknowledged and stipulated that all of the facts in the Original Complaint are true and correct. See Complaint ¶ 7.
The plaintiffs' claims arise from the following events. In October 2001, Bredimus, a United States citizen, traveled to Thailand to attend several scheduled business meetings. Complaint ¶ 8. Upon his arrival in Thailand, Bredimus hired Pensri Suhongsa ("Pensri") to accompany him to the Chiang Rai province as a "procurer" and interpreter. Id. ¶ 9. On November 3, 2001, Bredimus and Pensri traveled to Mae Sai in the Chiang Rai province of Northern Thailand and rented two rooms at the Srisamoot Hotel. Id. Because Bredimus was interested in photographing young children, he asked Pensri to find and bring him young children who would come to the hotel room. Id. Following Bredimus's instructions, Pensri invited a total of six young male children to the hotel room to meet Bredimus. Id. ¶ 20. Four of these children were sexually molested by Bredimus in the hotel room. Id.
Three male children were first brought to the hotel where they were introduced to Pensri. Id. ¶ 21. Pensri explained to them that a "Farang" or Western Foreigner wanted to take their pictures and if they agreed to be photographed, Pensri promised the children that they would be compensated. Id. Pensri then took the three boys to one of the hotel rooms and introduced them to Bredimus. Id. There, in the hotel room, Bredimus engaged in several sexually explicit acts with the young boys. See id. ¶¶ 21-27. While performing these acts, Bredimus videotaped himself engaged in sexually explicit conduct with one of the Thai boys and took digital images of the children engaged in such conduct. Id. ¶ 10.
After engaging in sexually explicit conduct with two of the children, Bredimus eventually paid the children 1,000 Baht, which is approximately $22 in American currency. Id. ¶¶ 23, 25. Also, Bredimus paid one child 1,500 Baht, amounting to $33 in American currency. Id. ¶ 22.
After receiving information that the boys had been lured into the hotel room, the police conducted a raid on the two hotel rooms and arrested Bredimus. Id. ¶¶ 13, 15, 16. While arresting Bredimus, the police officers discovered recording equipment in the hotel room. Id. ¶ 17. Based on this evidence, the police believed that Bredimus had traveled to Thailand with the intention of producing videos of child pornography for personal gain or to be commercially distributed. Id. The police seized a Sony digital camera, several videotapes, and pornographic photographs from Bredimus's hotel room. Id. During the raid of one of the hotel rooms, the police officers discovered several male children lying naked on the bed. Id. ¶ 16. The Thai police officers also arrested Pensri for luring the young boys into the hotel to provide sex services for Bredimus. Id. ¶ 17.
Shortly after his arrest, Bredimus — after posting a bail bond — was released by Thai authorities. Id. ¶ 19. As a condition of his release, Bredimus was instructed to appear in court on November 19, 2001, to answer charges that he had molested the children. Id. However, after his release from jail, Bredimus went to the United States Embassy in Bangkok to apply for a new passport. Id. Initially, Bredimus claimed (falsely) that the original passport he used to enter Thailand had been lost. Id. After retracting this story, Bredimus told Embassy officials that the passport he used to enter Thailand was in the custody of the Chiang Rai police. Id.
Although Bredimus offered no explanation as to why the Chiang Rai police were holding his passport, a later investigation revealed that the Thai police took custody of his United States passport because Bredimus was considered a flight risk. Complaint ¶ 19.
On November 8, 2001, the Bangkok, Thailand, Assistant Customs Attache Senior Special Agent Sene Tchen ("Tchen") and Foreign Service National Investigator Pastern Changjongpradit ("Pastern") traveled to Chiang Rai to meet with the Thai police. Id. ¶ 20. Pastern interviewed each of the victims, had them sign written statements, and photographed them. Id. ¶ 28. The Thai police made copies of the video tape and the police records and gave them to Pastern. Id. The videotape contained sexually explicit footage of Bredimus with the minor children, depicting him fondling the boys and performing oral sex. Id. Although the Thai police did not have the equipment to make copies of the images on the digital camera, Pastern examined the images and was able to determine that the photographs were of Bredimus and the minor children. Id.
Criminal proceedings were initiated against Bredimus in the Northern District of Texas before Magistrate Judge William F. Sanderson, Jr. Plaintiffs' Response at 2; Affidavit in Support of Complaint at 6, located in Appendix to Plaintiffs' Response to Defendant's Motion to Dismiss on Grounds of Forum Non Conveniens. Bredimus conditionally pleaded guilty to the charge of knowingly and willfully traveling in foreign commerce for the purpose of engaging in a sexual act with a minor. Id. As a result of his plea, Bredimus is currently incarcerated in a federal penitentiary. Id.
The plaintiffs bring this suit seeking damages for violation of federal criminal statutes, Texas criminal statutes, and Texas common law. Complaint ¶¶ 1-3, 30. Specifically, the plaintiffs assert the following causes of action against Bredimus: (1) compensatory and punitive damages based upon violations of 18 U.S.C. §§ 2252A(a)(2)(A), 2252A (a)(5)(B), 2252A(a)(1), and 2423(b); (2) punitive and exemplary damages based upon violations of Texas Penal Code § 22.01(a) for infliction of bodily injury in the sexual assault of the minor children; (3) punitive and exemplary damages based upon violations of Texas Penal Code § 22.01(a) for offensive physical contact during the sexual assault of the minor children; (4) punitive and exemplary damages based upon violations of Texas Penal Code § 22.01(a) for threat of bodily injury during the sexual assault of the minor children; (5) punitive and exemplary damages based upon violations of Texas Penal Code § 22.01(a) for false imprisonment during the sexual assault of the minor children; (6) punitive and exemplary damages based upon violations of Texas Penal Code § 22.01(a) for intentional infliction of emotional distress during the sexual assault of the minor children; (7) punitive and exemplary damages based upon invasion of privacy; (8) punitive and exemplary damages based upon libel, slander, and defamation; and (9) punitive and exemplary damages based upon negligence. Id. ¶¶ 5, 31-79.
"Any person who . . . knowingly receives or distributes . . . any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer . . . shall be punished as provided in subsection (b)." 18 U.S.C. § 2252A(a)(2)(A).
"Any person who . . . knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer . . . shall be punished as provided in subsection (b)." 18 U.S.C. § 2252A(a)(5)(B).
"Any person who . . . knowingly mails, or transports or ships in interstate or foreign commerce by any means, including by computer, any child pornography . . . shall be punished as provided in subsection (b)." 18 U.S.C. § 2252A(a)(1).
"A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both." 18 U.S.C. § 2423(b).
The plaintiffs seek punitive and exemplary damages for each of the individual claims pursuant to Texas Civil Practice and Remedies Code §§ 41.001, 41.005, and 41.008. See Complaint ¶¶ 31-79.
"A person commits an offense if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative." TEX. PENAL CODE § 22.01(a) (Vernon Supp. 2004).
II. ANALYSIS A. The Legal Standard
The doctrine of forum non conveniens proceeds from the premise that "[i]n rare circumstances, federal courts can relinquish their jurisdiction in favor of another forum." Quackenbush v. Allstate Insurance Company, 517 U.S. 706, 722 (1996). Forum non conveniens "enables a court to decline to exercise its jurisdiction if the moving party establishes that the convenience of the parties and the court and the interests of justice indicate that the case should be tried in another forum." Karim v. Finch Shipping Company, Ltd., 265 F.3d 258, 268 (5th Cir. 2001).
Federal courts must apply the federal version of the doctrine of forum non conveniens when resolving a motion to dismiss where the alternative forum is a foreign tribunal. Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 671 (5th Cir. 2003); De Aguilar v. Boeing Company, 11 F.3d 55, 58 (5th Cir. 1993). To obtain a dismissal based on 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, 325 F.3d at 671.
Under the first element of the test, the court must consider the amenability of the defendant to service of process and the availability of an adequate remedy in the alternative forum. Piper Aircraft Company v. Reyno, 454 U.S. 235, 254-55 (1981); McLennan v. American Eurocopter Corporation, Inc., 245 F.3d 403, 424 (5th Cir. 2001). The court must also bear in mind that "the ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice." In re Air Crash Disaster Near New Orleans, Louisiana on July 9, 1982, 821 F.2d 1147, 1162 (5th Cir. 1987) (en banc) (quoting Koster v. American Lumbermens Mutual Casualty Company, 330 U.S. 518, 527 (1947)), vacated on other grounds by Pan American World Airways, Inc. v. Lopez, 490 U.S. 1032 (1989). The defendant bears the burden of proof on all elements of the forum non conveniens analysis. In re Air Crash, 821 F.2d at 1164.
An alternative forum is "available" if the entire case and all the parties can come within its jurisdiction. Vasquez, 325 F.3d at 671; In re Air Crash, 821 F.2d at 1165. An available alternative forum is deemed "adequate" if "the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American court." Vasquez, 325 F.3d at 671 (quoting Gonzalez v. Chrysler Corp., 301 F.3d 377, 379-80 (5th Cir. 2002), cert. denied, 538 U.S. 1012 (2003)).
Once a court determines that there is an adequate and available alternative forum, it must then proceed to balance several "private interest" and "public interest" factors to determine if dismissal is appropriate. Vasquez, 325 F.3d at 672. The relevant private factors include, but are not limited to, the following: (1) the plaintiff's choice of forum; (2) the relative ease of access to sources of proof; (3) the availability of compulsory process to ensure the attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (4) the possibility of viewing the premises, if a view would be appropriate to the action; and (5) all other practical problems that make trial of a case easy, expeditious, and inexpensive — including the enforceability of any judgment and whether the plaintiff has sought to harass the defendant by selecting an improper forum. Id.; see also Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508 (1947); McLennan, 245 F.3d at 424; Baumgart v. Fairchild Aircraft Corporation, 981 F.2d 824, 836 n. 12 (5th Cir.), cert. denied, 508 U.S. 973 (1993). If the private factors weigh in favor of dismissal, then the court need not proceed further. Baumgart, 981 F.2d at 837; Empresa Lineas Maritimas Argentinas, S.A. v. Schichau-Unterweser, A.G., 955 F.2d 368, 376 (5th Cir. 1992) ("Given the availability of an adequate forum in the Netherlands and the balance of private interest factors favoring dismissal, the district court had no need to consider the public interest factors."). However, if the private interest factors do not weigh in favor of dismissal, then the court must examine a series of "public interest" factors. Gonzalez, 301 F.3d at 380. The public interest factors include:
[1] the administrative difficulties flowing from court congestion; [2] the "local interest in having localized controversies decided at home"; [3] the interest in having the trial of a diversity case in a forum that is [familiar] with the law that must govern the action; [4] the avoidance of unnecessary problems in conflict of law, or in the application of foreign law; and [5] the unfairness of burdening citizens in an unrelated forum with jury duty.Dickson Marine Incorporated v. Panalpina, Inc., 179 F.3d 331, 342 (5th Cir. 1999) (quoting Piper Aircraft, 454 U.S. at 241 n. 6). These lists of private and public factors are "by no means exhaustive, and some factors may not be relevant in the context of a particular case." Van Cauwenberghe v. Biard, 486 U.S. 517, 528-29 (1988). When considered in conjunction with one another, these factors provide for a flexible inquiry and no one factor is dispositive. Piper Aircraft, 454 U.S. at 249-50.
B. Thailand as an Available and Adequate Alternative Forum
The first step of the court's forum non conveniens analysis is to determine whether Bredimus has proven the existence of an alternative forum that is available and adequate. A foreign forum is available when the entire case and all parties can come within the jurisdiction of that forum. Baumgart, 981 F.2d at 835. A foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy all the benefits they might receive in an American court. Id.
1. Thailand's Availability as an Alternative Forum
As for Thailand's availability as an alternative forum, all of the plaintiffs are clearly within the jurisdiction of the Thai courts. Additionally, Bredimus has indicated his willingness to submit to the jurisdiction of the Thai courts. Defendant's Motion to Dismiss on Grounds of Forum Non Conveniens and Brief In Support Thereof ("Motion to Dismiss") ¶ 3 ("Bredimus hereby stipulates to the jurisdiction of the Thai courts."). A "defendant's submission to the jurisdiction of an alternative forum renders that forum available for the purposes of forum non conveniens analysis." Veba-Chemie A.G. v. M/V Getafix, 711 F.2d 1243, 1245 (5th Cir. 1983). A court may condition dismissal on forum non conveniens grounds on the consent of the defendant to jurisdiction in the foreign forum. Vasquez, 325 F.3d at 671; Nolan v. Boeing Company, 762 F. Supp. 680, 682 (E.D. La. 1989), aff'd, 919 F.2d 1058 (5th Cir. 1990), cert. denied, 499 U.S. 962 (1991). In this case, the plaintiffs urge that Bredimus's stipulation to the jurisdiction of the Thai courts should be viewed with caution. See Plaintiffs's Response at 5. Before Bredimus was scheduled to appear before the Chiang Rai local court in Thailand, he acquired another passport on the black market under an assumed name and managed to leave the country. See id.; Thomas Korosec, American Sex Tourist, DALLAS OBSERVER, Feb. 20, 2003, available at http://www.dallasobserver.com/issues/2003-02-20/feature.html ("Sex Tourist Article"). Also, Bredimus has previously stated that he has no intention of returning to Thailand because he "had already paid too many bribes" there. See Plaintiffs' Response at 5; Sex Tourist Article. Although Bredimus's statements and actions do affect his credibility, the requirement of availability is satisfied when the defendant is amenable to process in the foreign country. See Piper Aircraft, 454 U.S. at 254 n. 22. The court therefore concludes that if Bredimus submits to jurisdiction in Thailand, Thailand is an available forum for this litigation.2. Thailand's Adequacy as an Alternative Forum
The plaintiffs contend that even if the Thai courts have jurisdiction over this dispute, the Thai courts and Thai law are completely inadequate to render justice to the plaintiffs. See generally Plaintiffs's Response at 4-5. Since the plaintiffs' claims are based on the emotional damage inflicted upon the victims, the plaintiffs argue that the unavailability under Thai law of punitive damages and recovery for pain and suffering suggest that any recovery they may obtain in Thailand will be grossly inadequate to compensate them for their injuries and to deter future misconduct of this kind. See id.In some circumstances, the remedy provided in the alternative forum may be "so clearly inadequate or unsatisfactory that it is no remedy at all. . . ." Piper Aircraft, 454 U.S. at 254. In such cases, the alternative forum is deemed inadequate because "dismissal would not be in the interests of justice." Id. The Supreme Court explicitly noted in Piper Aircraft, however, that ordinarily, the fact that the alternative forum's substantive law is less favorable to the plaintiffs should not be given substantial weight in forum non conveniens determinations. Id. at 247. Where the alternative forum offers a remedy for the plaintiffs' claims, and there is no danger that they will be treated unfairly, the foreign forum is adequate. Id. at 255.
In the instant case, it appears that the plaintiffs have causes of action for the recovery of their alleged damages under Thai law. Motion to Dismiss ¶ 5. An affidavit of a Thailand attorney indicates that although there is no specific provision under Thai law for punitive damages, the plaintiffs may recover actual damages for pecuniary loss and intangibles, such as emotional distress and pain and suffering. Id. ¶ 5; Affidavit of Chaninat Leeds ("Leeds Affidavit") ¶¶ 5, 6, attached to Motion to Dismiss as Exhibit A; see also Plaintiffs's Response at 4. Relief on these claims, in whatever amount the damages in this case are determined to be, is not so negligible as to render the available remedy illusory.
The modern Thai legal system relies primarily on statutes, acts, regulations, and administrative notices as the basis of its law. Affidavit of Chaninat Leeds ("Leeds Affidavit") ¶ 4, attached to Motion to Dismiss as Exhibit A. Court decisions are generally not considered to be legally authoritative, except for Supreme Court decisions, which are considered to be persuasive authority. Id.
To the extent that the plaintiffs seek damages for emotional distress, mental anguish, loss of earnings, and medical expenses, these forms of compensation are codified under Thai law. Id. ¶ 6. For example, Section 420 of the Thai Civil and Commercial Code provides that a person who willfully or negligently, unlawfully injures the life, body, health, property or any right of another person is said to commit a "wrongful act" and is required to compensate the other party. Id. In certain cases of bodily injury, the injured person may claim compensation which is not a pecuniary loss under Section 446 of the Thai Civil and Commercial Code. Id. Additionally, Section 444 of the Thai Civil and Commercial Code allows an injured person to recover reimbursement of expenses and damages for total or partial disability to work. Id.
According to Thai law, the plaintiffs in this case also have a civil cause of action since they have alleged violations of the Thai Penal Code. Id. ¶ 7. Section 40 of the Thailand Criminal Procedure Code allows an injured person to file a civil case in connection with the criminal case, thereby allowing the individual the possibility of recovering damages for conduct that is covered by the Penal Code. Id. In fact, defamation and false imprisonment, two of the causes of action asserted by the plaintiffs in this case, are codified under Section 310 and 326 of the Thai Penal Code. Id. Further, according to Section 446 of the Thai Civil and Commercial Code, plaintiffs may have a cause of action for invasion of privacy pursuant to the protections provided in the Thailand Constitution. Id.
C. Balancing the Private and Public Interest Factors
The second step of the court's forum non conveniens analysis requires the court to determine whether Bredimus has established that the balance of relevant private and public interest factors favor dismissal in favor of the alternative forum.1. Private Interest Factors
Although the plaintiffs do not, in their response brief, address every single factor in the private interest analysis, the court will, for the sake of completeness, consider each of these factors individually.
First, the court must consider the plaintiffs' choice of forum. In Piper Aircraft, the Supreme Court stated that a foreign plaintiff's selection of an American forum deserves less deference than an American citizen's selection of his home forum. Piper Aircraft, 454 U.S. at 256. The fact that a foreign plaintiff's choice of an American forum receives less deference than an American plaintiff's choice of a domestic forum is
not because of chauvinism or bias in favor of [United States] residents. It is rather because the greater the plaintiff's ties to the plaintiff's chosen forum, the more likely it is that the plaintiff would be inconvenienced by a requirement to bring the claim in a foreign jurisdiction. Also, while our courts are of course required to offer equal justice to all litigants, a neutral rule that compares the convenience of the parties should properly consider each party's residence as a factor that bears on the inconvenience that party might suffer if required to sue in a foreign nation. Wiwa v. Royal Dutch Petroleum Company, 226 F.3d 88, 102 (2d Cir. 2000), cert. denied, 532 U.S. 941 (2001) (citations omitted).
The central purpose of the forum non conveniens inquiry is to guarantee that the trial is convenient for all the litigants. Piper Aircraft, 454 U.S. at 256. When a foreign plaintiff chooses a United States forum, it is "much less reasonable" to presume that the choice was made for convenience. Id. By giving a foreign plaintiff's choice of an American forum less deference than an American plaintiff's choice of a domestic forum, a court is not violating treaty obligations, but rather performing the forum non conveniens balancing test approved by the Supreme Court. Accordingly, this court finds that the plaintiffs' choice of a Texas forum is not entitled to great deference, and that this factor weighs in favor of dismissal.
Second, the court must consider the relative ease of access to the relevant sources of proof. Much of the testimonial and physical evidence in this case is located in Thailand. For instance, the primary fact witnesses are in Thailand, including the plaintiffs, the three John Does, and the other three of the six victims identified as victims 1 through 6 in the complaint. Complaint ¶ 12-28. Other critical witnesses, such as the Thai national and local authorities who investigated the incident, the alleged procurers who "lured" the children into Bredimus's hotel room, and any unidentified hotel employees who were present on the date of the alleged incident, are also located in Thailand and are beyond the subpoena power of this court. Defendant's Reply Brief on Motion to Dismiss on Grounds of Forum Non Conveniens ("Bredimus's Reply") at 6. Additionally, medical reports and evidence of medical expenses are located in Thailand. Bredimus's Motion to Dismiss ¶ 8.
Admittedly, not every source of proof in this case points to Thailand as the proper forum. In fact, the plaintiffs contend that because some of the tangible and documentary evidence has been relocated to the United States in connection with the criminal prosecution of Bredimus, a trial in the United States would be as convenient as one in Thailand. According to the plaintiffs, evidence which is already in possession of the United States Government includes the following: (1) a videotape shot by Bredimus while he engaged in sexually explicit acts with the victims; (2) the video camera and the digital camera used by Bredimus while he engaged in the sexually explicit acts; (3) digital images and color copies of the images from the digital camera; (4) fingerprint analysis results; (5) documents relating to Bredimus's travel in Thailand; and (6) documents relating to the Thai police investigation and court proceedings. Plaintiffs' Response at 6-7. The court, however, finds the plaintiffs' argument unpersuasive. See Piper Aircraft, 454 U.S. at 242 (affirming dismissal, on forum non conveniens grounds, of product liability claims against an American airplane manufacturer arising out of an accident in Scotland, despite the fact that critical "evidence concerning the design, manufacture, and testing of the plane and propeller is located in the United States . . ."); Torreblanca de Aguilar v. Boeing Company, 806 F. Supp. 139, 144 (E.D. Tex. 1992) ("The fact that some evidence concerning the aircraft's design and manufacture may be located elsewhere in the United States does not make the Eastern District of Texas a convenient forum."). Although there is some evidence available here in the United States, it appears that most of the relevant information and key players, with the exception of Bredimus, are located in Thailand. As a result, the court find that the second private interest factor weighs in favor of dismissal.
The plaintiffs rely on Prevision Integral de Servicios Funerarios, S.A. de C.V. v. Kraft, 94 F. Supp. 2d 771 (W.D. Tex. 2000), for the proposition that the access to proof factor does not warrant dismissal of this case on forum non conveniens grounds. Plaintiffs' Response at 8. In Prevision, majority shareholders of corporations located in Mexico that were engaged in the mortuary business sued a minority shareholder in a Texas state court, alleging that funds had been misappropriated into American investment banking accounts. Id. at 774. Unlike the situation in the instant case, the bulk of the alleged wrongdoing occurred in Texas and was subject to Texas law. The court reasoned that since the plaintiffs could be compelled to produce relevant documents to the court, the defendant failed to identify any specific source of proof that would not be available to her outside of Mexico. Id. at 778. More importantly, the court found that of the thirty-two potential witnesses, only two of the named individuals lived in Mexico. Id. Thus, it is evident that the rationale in Prevision does not apply here because the alleged wrongdoing in this case took place in Thailand, the police records of the investigation are located in Thailand, and the majority of the witnesses who will be called to testify at trial are all citizens of Thailand and reside there.
Third, the availability of compulsory process for the attendance of unwilling witnesses and the cost of securing the attendance of willing witnesses also weighs in favor of dismissal. Based on the facts disclosed in the parties' pleadings, there will be some fact witnesses from the United States, but most of the fact witnesses will come from Thailand. Bredimus's Reply at 6. The plaintiffs, the six victims, the alleged procurers, and the police officers who were involved in the investigation are all Thai. Id. Any unidentified hotel employees who were present on the date of the alleged incident and any unidentified police authorities are all presumably Thai. See id. The court cannot compel the presence of these Thai witnesses in this Texas forum. The plaintiffs seem to suggest that these witnesses are available and are willing to be present in a United States court. See generally Plaintiffs' Response 8-9. However, the plaintiffs have apparently not ascertained the availability of any witnesses who might be unwilling to appear, and this court cannot compel their attendance. Since depositions are not specifically authorized under Thai law, the testimony of any nonparty witness who might be unwilling to appear in Texas could only be obtained through letters rogatory pursuant to the Hague Convention. The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2255, T.I.A.S. No. 7444; see also Leeds Affidavit ¶ 9. Nevertheless, this procedure presents difficulties in obtaining adequate deposition testimony, and is expensive and time consuming. A source cited by the plaintiffs in their brief even indicates that the process of using letters rogatory takes a minimum of six months. Plaintiffs' Response Brief at 9 n. 25 (citing Thailand Legal Basics); Bredimus's Reply at 7. Moreover, even if Bredimus could obtain the testimony of the Thai witnesses through depositions or affidavits, to "fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition is to create a condition not satisfactory to [the] court, jury or most litigants." Perez Compania (Cataluna), S.A. v. M/V Mexico I, 826 F.2d 1449, 1453 (5th Cir. 1987) (quoting Gulf Oil, 330 U.S. at 511); see also Torreblanca de Aguilar, 806 F. Supp. at 144 (relying on depositions rather than live testimony precludes the trier of fact from evaluating the credibility of the witnesses).
"[A] letter rogatory is the request by a domestic court to a foreign court to take evidence from a certain witness." Intel Corporation v. Advanced Micro Devices, Inc., ___ U.S. ___, 124 S.Ct. 2466, 2473 n. 1 (2004) (citing Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 YALE L.J. 515, 519 (1953)).
Thailand is neither a party to the Hague Convention on Taking Evidence Abroad nor to any bilateral agreements on taking evidence or enforcing foreign judgments in civil matters. Tilleke Gibbins International, Ltd., Thailand Legal Basics (March 2003), at http://www.tillekeandgibbins.com/ Publications/thailand_legal_basics/foreign_court.pdf ("Thailand Legal Basics"). Although Thai judges will often respond to a foreign judge's request that a deposition be taken from Thai or non-Thai citizens in a Thai court, they are not legally obligated to do so in the absence of a treaty or special law. Id. In addition, Thai courts will not enforce foreign court orders to compel depositions. Id.
The cost of transporting and lodging those Thai witnesses willing to appear in this court would probably, due to the size of the group, be extremely high. And while certainly not decisive, language might also be barrier to swift adjudication in this forum. Many of the witnesses who reside in Thailand speak Thai as their primary language. As a result, conducting a trial in the United States would require the translation of numerous reports and substantial witness testimony. This factor therefore favors dismissal to allow the plaintiffs to proceed in Thailand.
Fourth, the court must consider the relevance and necessity of the fact finder having a view of the premises. This factor is not applicable here.
Finally, the court must weigh considerations such as the potential difficulty the plaintiffs might have in enforcing the judgment of a Thai court against Bredimus. The court can eliminate concerns about the plaintiffs' ability to enforce any judgment of a Thai court in this case by conditioning dismissal upon Bredimus's agreement to satisfy any such judgment. Nolan, 762 F. Supp. at 684; Zermeno v. McDonnell Douglas Corporation, 246 F. Supp. 2d 646, 662 (S.D. Tex. 2003). Bredimus must stipulate that any valid final judgment entered against him by the courts of Thailand is entitled to full faith and credit in the courts of the United States. If Bredimus so stipulates, the court finds that this factor weighs in favor of dismissal.
Because the private interest factors weigh in favor of dismissal, the analysis could end at this point. See page 10 above. For the sake of completeness, however, the court will consider the public interest factors below.
2. Public Interest Factors
The public interest factors, as a whole, weigh in favor of dismissal. However, the first factor, minimizing administrative difficulties, does not strongly favor dismissal. While a trial in this court may theoretically burden its already crowded docket, the court is hesitant to give this factor undue weight. It does not appear that the trial of this case would be likely to absorb an inordinate amount of the court's time.The second public interest factor, the interest in resolving local controversies locally, strongly supports dismissal. Since the plaintiffs are citizens of Thailand, the relevant conduct occurred in Thailand, and the damages experienced by the plaintiffs accrued in Thailand, Thailand has a great interest in regulating this kind of behavior and adjudicating the claims of Thai citizens injured on Thai soil. While it is true that Bredimus is an American citizen and that Texas arguably has an interest in deterring this kind of conduct in the future, the court finds that Texas' interest in this case is not as strong as Thailand's. See, e.g., Piper Aircraft, 454 U.S. at 260 (where aircraft accident occurred in foreign country and victims were all citizens of that country, and only the aircraft manufacturer and propeller manufacturer were American citizens, foreign forum had a "very strong interest" in the case); Baumgart, 981 F.2d at 837 (where aircraft was designed and manufactured in Texas, but crashed in Germany, Fifth Circuit affirmed the district court's finding that Germany had a stronger interest in the case); Nolan, 762 F. Supp. at 684 (the United States' interest in ensuring that American manufacturers are deterred from producing defective products is not sufficient to justify the commitment of judicial resources needed to try the case in the United States).
The plaintiffs cite the recent publicity in the Dallas Observer to support their argument that local interests weigh in favor of this court retaining jurisdiction. See Plaintiffs' Response at 10-11. However, given the plaintiffs' allegations of the tortious conduct that occurred in Thailand, it seems that Thailand has a much stronger interest in the matter. The fact that a criminal case against Bredimus proceeded in Texas does not create the local interest that is necessary to allow a civil action to proceed in this forum. The criminal charges only involved Bredimus's travel, which originated in Texas, with the intent to engage in the prohibited conduct. See 18 U.S.C. §§ 2252A(a)(2)(A); 2252A(a)(5)(B); 2252A(a)(1); 2423(b). The allegations in this civil case, however, deal specifically with Bredimus's acts in Thailand.
The third and fourth public interest factors, the interest in having the trial of a diversity case in a forum that is familiar with the law governing the action and the avoidance of unnecessary problems in conflict of law, both strongly favor dismissal. Although the plaintiffs argue that the court should not consider the fourth factor because they have only invoked federal law and state law, see Plaintiffs' Response at 11, a party cannot simply invoke the most favorable law. Whether this case is tried in Texas or Thailand, Thai law will likely govern because of Texas choice of law rules. A federal court sitting in diversity applies the conflict of law rules of the state in which it sits. Klaxon Company v. Stentor Electric Manufacturing Company, 313 U.S. 487, 496 (1941). Texas follows the "most significant relationship" test which considers various contacts such as: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the parties' residence; and (4) the place where the relationship, if any, between the parties is centered. RESTATEMENT (SECOND) OF CONFLICTS OF LAW § 145 (1971); Duncan v. Cessna Aircraft Company, 665 S.W.2d 414, 421 (Tex. 1984). An application of this test clearly indicates that Thailand has the most significant relationship to the occurrence and the parties. As stated above, all of the plaintiffs are citizens of Thailand and the alleged acts occurred in Thailand. The plaintiffs have failed to present any information to this court that demonstrates any real nexus this dispute has with Texas.
Even though the court concludes that Thai law applies to this case under the most significant relationship test, it points out that the plaintiffs' assertion that they have invoked state law in this civil action is somewhat misleading. The plaintiffs allege various causes of action for violations of Texas Penal Code § 22.01 (a). See Complaint ¶¶ 31-79. The Texas Penal Code, however, does not apply to conduct which occurs outside the jurisdiction of the state. For Texas to have jurisdiction over an offense under the Penal Code, either the conduct or a result that is an element of the offense must occur inside the state. TEX. PENAL CODE § 1.04(a)(1) (Vernon 2003). Here, Bredimus's conduct occurred entirely outside Texas and the United States and any resulting effect his actions had on the minor plaintiffs also occurred outside of Texas. Therefore, the plaintiffs do not appear to have a viable claim under this statutory provision to support their claim for damages.
The court recognizes the disparate levels of punitive damages provided under Texas and Thai law and the incentive for the plaintiffs to sue in the United States. However, given that all the plaintiffs are Thai, there appears to be little justification for applying Texas law. Were the court to apply Texas law as a means of righting any perceived inequities of Thai law, it would be treading upon the policy choices the Thai government has made in the competing objectives and costs of tort law. Uniformity and accommodation of the competing policies of the two nations favor applying Thai law. As a result, the court finds that Thailand has the most significant relationship to the facts of this case because, as discussed above, Thailand is the place where the alleged incident occurred; because all of the plaintiffs are Thai citizens; and because relevant Fifth Circuit case law strongly supports the conclusion that Thai law applies in this case. See Baumgart v. Fairchild Aircraft Corporation, Civ. A. No. SA-90-CA-818, 1991 WL 487242, at *8 (W.D. Tex. Sept. 30, 1991) (where Texas built aircraft crashed in Germany and injured German citizens, German law, and not Texas law, would most likely apply under the most significant relationship test), aff'd, 981 F.2d 824 (5th Cir. 1993); Nolan, 762 F. Supp. at 685 (where plaintiffs were citizens of England and were injured in a crash of an American built aircraft in England, English law would likely apply under the most significant relationship test). Since Thai law will likely apply under Texas choice of law rules, the court finds that there is a strong interest in trying this case in a forum that is familiar with Thai law. Therefore, the court finds that this factor weighs in favor of dismissal.
Finally, the interest in avoiding burdening citizens in an unrelated forum with jury duty weighs in favor of dismissal. As previously discussed, this case has minimal connections to Texas. Jury duty should not be imposed on the citizens of Texas in a case that has such a slight connection with this state. See, e.g., Kamel v. Hill-Rom Company, Inc., 108 F.3d 799, 804-05 (7th Cir. 1997) (noting that Indiana residents "have a mere passing interest" where foreign plaintiff is injured in foreign land). Conversely, the connection to Thailand is high. See Delgado v. Shell Oil Company, 231 F.3d 165, 181 (5th Cir. 2000), cert. denied, 532 U.S. 972 (2001) ("[T]hose foreign countries [where the plaintiffs had suffered injury] obviously have an interest in protecting the rights and welfare of their citizens."); Torreblanca de Aguilar, 806 F. Supp. at 144 (concluding that Mexico has "paramount interest" in resolving claims brought by Mexican plaintiffs arising from air crash in Mexico that was investigated by Mexican authorities). Therefore, the court finds that this factor weighs in favor of dismissal.
III. CONCLUSION
For the reasons discussed above, Bredimus's motion to dismiss on forum non conveniens grounds is GRANTED. The court finds that Thailand is an adequate and available forum for this case, so long as the court's conditions on dismissal are satisfied. The private and public factors clearly support dismissal of this case on forum non conveniens grounds. Therefore, dismissal is appropriate, provided that the following conditions are met: (1) that Bredimus timely submits to service of process and jurisdiction in the appropriate Thai forum; (2) that Bredimus waives any statute of limitations defense that did not exist prior to initiation of this lawsuit; (3) that the plaintiffs file suit in an appropriate Thai court within 120 days of the date of this order of dismissal; (4) that Bredimus makes available for the Thai court proceedings all relevant documents and witnesses within his control; and (5) that Bredimus agrees that any final judgment rendered by the Thai courts in this case shall be entitled to full faith and credit in the courts of the United States.
Counsel for the parties shall confer and submit, within twenty days of this date, an agreed form of judgment conforming to this memorandum order. If agreement is not possible, each side shall submit his/their requested form of judgment.