Nipponkoa Insurance Company, LTD., v. Ceva Logistics U.S., Inc.

MEMORANDUM in Support of MOTION to Dismiss Case for Forum Non Conveniens 54

C.D. Cal.July 19, 2012

1 Katherine L. Nichols (SBN 228893) DUANE MORRIS LLP 2 865 South Figueroa Street, Suite 3100 Los Angeles, CA 90017-5450 3 Telephone: 213.689.7400 Facsimile: 213.689.7401 4 E-Mail: knichols@duanemorris.com 5 Attorneys for Defendants CEV A Logistics, U.S., Inc. and 6 CEV A Freight, LLC 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 NIPPONKOA INSURANCE COMPANY, LTD., 12 13 14 v. Plaintiff, CEVA LOGISTICS, U.S., INC., and CEVA 15 FREIGHT, LLC, 16 17 18 19 20 21 22 23 24 25 26 27 28 DMl\3428559.1 Defendants. Case No.: 2:12-CV-5801 CAS (AGRx) Hon. Christina A. Snyder MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CEV A LOGISTICS, U.S., INC.'S AND CEV A FREIGHT LLC'S MOTION TO DISMISS Date: Time: Courtroom: August 20, 2012 10:00 a.m. 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 1 of 15 Page ID #:487 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION .......................................................................................... 1 4 II. STATEMENT OF RELEVANT FACTS ....................................................... 1 5 III. LEGAL ARGUMENT .................................................................................... 3 6 A. Standard for Forum Non Conveniens ................................................... 3 7 B. Mexico Is The Appropriate Forum for This Dispute ........................... 4 8 C. Public And Private Interest Factors Favor Litigation In Mexico ......... 6 9 1. Private Interest Factors ............................................................... 6 10 2. Public Interest Factors ................................................................ 8 11 D. Plaintiffs Choice ofForum Is Entitled To Minimal Deference ........ 10 12 IV. CONCLUSION ............................................................................................. 10 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DMI\3428559.1 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 2 of 15 Page ID #:488 1 2 3 Cases 4 Becker v. Club Las Velas TABLE OF AUTHORITIES Page(s) 5 1995 U.S. Dist. LEXIS 6101 (S.D.N.Y. May 8, 1995) ............................................... 7 6 Creative Tech. v. Aztech Sys. PTE 7 61 F.3d 696 (9th Cir. 1995) .................................................................................. 4-6, 8, 10 8 Extractora de Productos Vegetale y Animales S.A. v. MIV SONIA M 1991 AMC 2953 (S.D.N.Y. Jan. 9, 1991) ....................................................................... 5 9 Gemini Capital Group, Inc. v. Yap Fishing Corporation 10 150 F.3d 1088 (9th Cir. 1999) ......................................................................................... 10 11 In re Air Crash at Madrid, Spain on August 20, 2008 12 2011 U.S. Dist. LEXIS 29841 (C.D. Cal. March 22, 2011) .................................... 8 13 Industria Fotographica Interamericana S.A. de C. V v. MIV JALISCO 14 1996 AMC 769 (S.D. Tx. Oct. 26, 1995) ........................................................................ 5 15 Iragorri v. United Techs. Corp. 16 274 F.3d 65 (2nd Cir. 2001)(en banc) ........................................................................ 4, 10 17 Langsam v. Gardens 18 2009 U.S. Dist. LEXIS 52597 (S.D.N.Y. June 15, 2009) .......................................... 5 19 Loya v. Starwood Hotels & Resorts 2007 U.S. Dist. LEXIS 49012 (W.D. Wash. July 6, 2007) ........................................ 9 20 Loya v. Starwood Hotels & Resorts Worldwide, Inc. 21 583 F.3d 656 (9th Cir. 2009) ...................................................................................... 3-4, 9 22 23 24 Lust v. Nederlandse Programma Stichting 2011 U.S. Dist. LEXIS 77618 (S.D.N.Y. July 18, 2011) ........................................... 9 Maersk, Inc. v. Neewra, Inc. 25 554 F.Supp.2d 424 (S.D.N.Y. 2008) ............................................................................... 9 26 Monegasque De Reassurances S.A.M v. Nak Naftogaz of Ukr. 27 311 F.3d 488 (2d Cir. 2002) ......................................................................................... 5, 10 28 DMI\3428559.1 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 3 of 15 Page ID #:489 1 PT United Can Co. v. Crown Cork & Seal Co. 2 138 F.3d 65 (2d Cir. 1998) ................................................................................................. 5 3 Saqui v. Pride Central America, LLC 4 2010 AMC 1617 (5th Cir. 2010) ....................................................................................... 7 5 Seguros Comercial Americas S.A. de C. V. v. American President Lines, Ltd. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1996 AMC 1441 (S.D. Tx. Oct. 4, 1995) .............................................................. Passim Vivendi S.A. v. T-Mobile USA Inc. 586 F.3d 689 (9th Cir. 2009) ....................................................................................... .4, 10 DMI\3428559.1 111 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 4 of 15 Page ID #:490 1 I. 2 INTRODUCTION This case should be dismissed as the Central District of California is a forum 3 non conveniens. 4 Plaintiff, a Japanese insurance company, claims for the alleged theft of a cargo 5 in Mexico when the truck it was on was hijacked by armed robbers. The cargo was 6 being shipped from China to Mexico: it was not destined for California or the United 7 States, and did not transit through California or the United States. 8 The shipment was being delivered to a Mexican facility when it was stolen. 9 The truck was hijacked while in the custody of a Mexican truck driver, working for a 10 Mexican trucking company, while being escorted by armed Mexican guards working 11 for a Mexican security company. The hijacking was investigated by the Mexican 12 authorities and by a Mexican surveyor hired by Plaintiff. Even Plaintiffs own 13 investigation was performed entirely in Mexico. Plaintiffs own claims rely entirely 14 on witnesses and evidence in Mexico. There is no legitimate reason for this case to be 15 heard in the United States. 16 II. STATEMENT OF RELEVANT FACTS 17 PlaintiffNipponkoa Insurance Company, Ltd. ("Nipponkoa") alleges it is an 18 insurance company organized and existing under the laws of Japan, with a principal 19 place of business in Japan. Amended Complaint, (Docket No. 23), at~ 2 1 • Nipponkoa 20 asserts a subrogated claim for the alleged loss of a cargo of laptop computers 21 purportedly owned by Toshiba American Information Systems, Inc. ("TAIS") Id., ,~~ 3 22 and 19. 23 Nipponkoa alleges that the laptops were delivered to CEVA in Shanghai, 24 Peoples Republic of China and that CEV A agreed to carry them to Mexico City, 25 1 Plaintiff only named CEVA Logistics U.S., Inc. ("CEVA Logistics") in its initial 26 complaint, alleging that it is the successor in interest to an entity named "EGL Eagle Glooal Logistics, LP ('EGL')." Complaint (Docket No. 1) at~ 2. On March 23, 27 2012, Plaintiff filed an Amended Com2laint alleging that both CEV A Logistics and a new defendant CEV A Freig_ht LLC (collectively referred to as "CEV A") are both 28 successors in interest to EGL. See Amended Complaint, (Docket No. 23) at ~~4-5. OM! \3428559.1 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 5 of 15 Page ID #:491 1 Mexico. I d., ,-r 11. Nipponkoa alleges that the laptops were carried by vessel from 2 Shanghai to Manzanillo, Mexico and by rail from Manzanillo to Mexico City by rail. 3 Id., ,-r 12. Nipponkoa alleges that a truck delivering the laptops to TAIS customers 4 was hijacked and the laptops were stolen. Id. 5 Nipponkoa hired a Mexican surveyor, RTS InternationalS de RL de CV 6 ("RTS"), to investigate the loss in Mexico. Declaration of Katherine L. Nichols 7 ("Nichols Decl.") at Exhibit 1, Surveyor's Final Report. 8 As part of its investigation, RTS met with Toshiba de Mexico, S.A. de C.V.'s 9 ("Toshiba Mexico") Logistics & Operations Manager and Import Coordinator in 1 o Mexico on May 17, 2011. Nichols Decl., Ex. 1 at pp. 4-5. Toshiba Mexico is listed 11 as the "consignee" and "customer" on the Surveyor's Report. Id. RTS also met with 12 CEVA's Security Manager Mexico and Regional Security Manager in Polanco, 13 Mexico on September 1, 2011. Id. at p. 5. 14 RTS concluded that CEV A had arranged for CMA CGM Mexico, S.A. de C.V. 15 ("CMA CGM Mexico") to truck the laptops from a rail yard and that the goods were 16 hijacked while in CMA CGM Mexico's possession. Id. at pp. 5-6. RTS concluded 17 that CEVA hired a Mexican firm, Prosegur, to provide an armed escort for the 18 shipment. Id. at pp. 6-7. RTS further determined that the Mexican authorities 19 investigated the hijacking. Id. at p. 7. 20 Nipponkoa alleges that CEV A "was to implement, comply with, and not deviate 21 from minimum security guidelines." Amended Complaint (Docket No. 23), at ,-r 9]. 22 Nipponkoa alleges that CEV A breached its claimed obligation to provide security by 23 "deviating from the route, failing to make point-to-point delivery, and failure to 24 properly vet and ensure the carriers it hired followed the proper security procedures." 25 I d., ,-r 13. Nipponkoa further alleges that CEV A "failed to exercise due care in 26 rendering services to [TAIS] including security services, and acted negligently, 27 grossly neligent [sic], willfully, wantonly and/or recklessly in rendering services ... and 28 such conduct proximately caused the loss of' the laptops. Id. DMI\3428559.1 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 6 of 15 Page ID #:492 1 CEV A intends to claim for indemnity and/or contribution from CGA CGM 2 Mexico and Prosegur, but cannot do so because they may not be subject to jurisdiction 3 in the Central District of California. 4 Nipponkoa originally filed its action against Defendants in the Southern District 5 of New York against CEV A Logistics only. Nipponkoa has filed similar cargo claims 6 against CEV A Logistics in the Southern District ofNew York, despite at least one 7 prior warning from a District Court Judge that New York was not the appropriate 8 forum for claims occurring elsewhere. Order dated February 19, 2009 by the Hon. 9 Richard M. Berman, (Docket No. 25-1 ). 10 CEV A Logistics filed a motion to dismiss for forum non conveniens. 11 Nipponkoa cross-moved to transfer venue to this judicial district based on a clause in 12 an alleged Transportation Agreement between TAIS and EGL. The provision 13 Nipponkoa relied upon provides: 14 15 16 17 16. Govemin~ Law and Jurisdiction. This Agreement shall be governed by an intef2reted in accordance with the laws of the State of California, excluding California's conflict of law provisions that direct application of another jurisdiction's laws. The parties expressly consent to the jurisdiction of the federal and state courts located in Orange County, California in the event of any litigation relating to tli1s Agreement. 18 Transportation Agreement, Docket No. 19-1 at p. 9. On July 2, 2012, the Honorable 19 Shira A. Scheindlin of the Southern District of New York transferred the action to this 20 Court, but explicitly reserved the issue of whether California was a forum non 21 conveniens for this Court. Order dated July 2, 2012 (Docket No. 36) at p. 6. 22 23 III. LEGALARGUMENT 24 A. Standard for Forum Non Conveniens 25 Under the common law doctrine of forum non conveniens, a court may refrain 26 from hearing the case if another significantly more appropriate forum exists. See 27 Loya v. Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656, 664 (9th Cir. 28 2009). "A party moving to dismiss on grounds of forum non conveniens must show DMI\3428559.1 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 7 of 15 Page ID #:493 1 two things: (1) the existence of an adequate alternative forum, and (2) that the balance 2 of private and public interest factors favors dismissal." !d. 3 Private interest factors include: "(1) relative ease of access to sources of proof; 4 (2) the availability of compulsory process for attendance of hostile witnesses, and cost 5 of obtaining attendance of willing witnesses; (3) possibility of viewing subject 6 premises; ( 4) all other factors that render trial of the case expeditious and 7 inexpensive." Creative Tech. v. Aztech Sys. PTE, 61 F.3d 696, 703 (9th Cir. 1995) 8 (internal quotations omitted). Public interest factors include "(I) administrative 9 difficulties flowing from court congestion; (2) imposition of jury duty on the people o 10 a community that has no relation to the litigation; (3) local interest in having localized 11 controversies decided at home; ( 4) the interest in having a diversity case tried in a 12 forum familiar with the law that governs the action; (5) the avoidance of unnecessary 13 problems in conflicts of law." !d. at 703-04. 14 While normally there is a strong presumption in favor of honoring the 15 plaintiffs choice of forum, a foreign plaintiffs choice is afforded less deference. !d. 16 at 703. In addition: 17 18 19 20 the more it appears that the plaintiffs choice of a U.S. forum was motivated by forum-shopping reasons -- such as attempts to win a tactical advantage resulting from local laws that favor the plaintiffs case, the habitual generosity of juries in the United States or in the forum district, the plaintiffs popularity or the defendant's unpopularity in the region, or the mconvenience and expense to the defendant resultmg from litigation in that forum-- the less deference the plaintiffs choice commands. 21 Iragorri v. United Techs. Corp., 274 F.3d 65, 73 (2nd Cir. 2001)(en bane); see also 22 Vivendi S.A. v. T-Mobile USA Inc., 586 F.3d 689, 695 (9th Cir. 2009)(concurring with 23 Iragorri and quoting text). 24 Based on the above factors, this matter should be decided in Mexico, where all 25 the underlying events took place, and where the evidence and witnesses are located. 26 B. Mexico Is The Appropriate Forum for This Dispute 27 An alternative forum is available if the defendants are amenable to service of 28 process there, and if it permits litigation of the subject matter of the dispute. Creative DMJ\3428559.1 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 8 of 15 Page ID #:494 1 Tech., 61 F .3d at 701. It is well-settled that "the availability of an adequate alternative 2 forum does not depend on the existence of the identical cause of action in the other 3 forum.'' PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir. 4 1998); see also Creative Tech, 61 F.3d at 702 ("A court may dismiss onforum non 5 coveniens grounds even though the foreign forum does not provide the same range of 6 remedies that are available in the home forum.") 7 CEVA operate in Mexico and will submit to the jurisdiction of Mexican courts. 8 Mexico has been repeatedly held to be an adequate forum for the resolution of 9 cargo disputes. See Extractora de Productos Vegetate y Animates S.A. v. M/V SONIA 10 M, 1991 AMC 2953, 2955 (S.D.N.Y. Jan. 9, 1991) (dismissing action for alleged 11 cargo loss during shipment from Chile to Mexico); Industria Fotographica 12 Interamericana S.A. de C. V v. MIV JALISCO, 1996 AMC 769,772 (S.D. Tx. Oct. 26, 13 1995) ("Mexico is available and adequate" for disputed cargo loss during shipment 14 from Mexico to Brazil) and Seguros Comercial Americas S.A. de C. V v. American 15 President Lines, Ltd., 1996 AMC 1441, 1453-1454 (S.D. Tx. Oct. 4, 1995) (finding 16 that Mexico is an adequate forum for cargo loss claim arising from truck hijacking in 17 Mexico). See also Langsam v. Gardens, 2009 U.S. Dist. LEXIS 52597, at * 20-21 18 (S.D.N.Y. June 15, 2009) (Mexico is an adequate forum because breach of contract is 19 a cognizable cause of action under Mexican law). 20 Further, TAIS also operates in Mexico as does its Mexican subsidiary Toshiba 21 Mexico. TAIS "voluntarily conducted business in [Mexico], and must have 22 anticipated the possibility of litigation in [Mexico]." Monegasque De Reassurances 23 S.A.M, 311 F.3d at 488, 499 (2d. Cir. 2002) (Ukraine proper forum in action where 24 foreign insurance company was subrogated to Russian company conducting business 25 in Ukraine). 26 27 28 DMI\3428559.1 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 9 of 15 Page ID #:495 1 C. Public And Private Interest Factors Favor Litigation In Mexico 2 The cargo shipped from China to Mexico; it was not bound for the United 3 States and did not even transit through the United States. The hijacking occurred in 4 Mexico and all personnel involved are Mexican residents. California has no 5 connection to the dispute. The interests of the parties and public favor litigation in 6 Mexico and compel dismissal of this action. 7 1. Private Interest Factors 8 The private interest facts include "( 1) relative ease of access to sources of proof; 9 (2) the availability of compulsory process for attendance of hostile witnesses, and cost 10 of obtaining attendance of willing witnesses; (3) possibility of viewing subject 11 premises; ( 4) all other factors that render trial of the case expeditious and 12 inexpensive." Creative Tech. v. Aztech Sys. PTE, 61 F.3d 696, 703 (9th Cir. 1995). 13 The private interest factors overwhelmingly favor litigation in Mexico. 14 Nipponkoa's claims focus the security that CEVA was allegedly obligated to provide 15 and whether the appropriate security was provided during the subject shipment. But 16 the individuals that made the security arrangements are in Mexico, CMA COM 17 Mexico's trucker is in Mexico, the security guards provided by Prosegur are in 18 Mexico and the Mexican officials that investigated the hijacking are in Mexico. Even 19 Nipponkoa's own surveyor is in Mexico! None of the known witnesses are located in 20 California. 21 Similarly, documents created contemporaneous with the theft, including police 22 reports, are located in Mexico. 23 The Southern District of Texas' decision in Seguros Comercial, 1996 AMC 24 1441, is instructive. There, as here, the plaintiff claimed that the carrier failed to 25 provide adequate security and negligent entrustment/bailment of cargo to a trucking 26 subcontractor that was hijacked in Mexico. 1996 AMC at 1442. The Court concluded 27 that the ease of access to proofs favored dismissal, noting that, just as in this case: 28 DMI\3428559.1 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 10 of 15 Page ID #:496 1 The claim arose when a Mexican truck driven by a resident of Mexico on Mexican highways was hijacked, presumably by Mexicans. 2 3 !d. at 1455. Here, the Mexican truck driver was also accompanied by Mexican 4 security guards working for a Mexican company, and the loss was investigated by a 5 Mexican surveyor and the Mexican authorities. 6 If this case were to proceed in California, the cost would be prohibitive as the 7 parties would be forced to incur substantial expense to transport and accommodate 8 every witness for a trial in California. If the action were to proceed in Mexico, 9 however, the parties need only shoulder their respective travel and accommodation 10 expenses. Seguros Comercial is again instructive: 11 12 13 Because many of the potential witnesses are located in Mexico, costs considerations dictate tnat trial in Mexico would be far more expedient. Transp~rtation _of the witn~sses willing to testify in Texas would be expensive and time consummg. 14 1996 AMC at 1456. 15 Further, the non-party witnesses are located in Mexico and are not subject to 16 compulsory process in the United States. 17 18 19 Unwilling witnesses present even more of an obstacle to maintaining jurisdiction in the Umted States. Neither the parties nor the court can re~uire the Mexican long-haul trucker. .. , the Mexican police officials, and other Mexican residents to appear before this court for trial. 20 Seguros Comercial, 1996 AMC at 1456-1457. See also Becker v. Club Las Velas, 21 1995 U.S. Dist. LEXIS 6101, at *9 (S.D.N.Y. May 8, 1995) ("New York is without 22 compulsory process to compel the attendance of any of these [Mexican] witnesses."); 23 Saqui v. Pride Central America, LLC, 2010 AMC 1617, 1625 (5th Cir. 2010) ("United 24 States courts are unequipped to compel nonparty witness testimony from witnesses 25 located in Mexico"). 26 27 28 Further, [A] view of the conditions of the highway could provide evidence related to the negligence of selecting that particular route for the journey, a factor relevant to [plaintiffs] clmm that [the carrier] was negligent for not DMI\3428559.1 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 11 of 15 Page ID #:497 1 2 3 providing adequate security given conditions within Mexico. Litigation m Mexico would also provide access to the third-party trucker and a view of its trucks,· trucking facilities, and security procedures, all factors relevant to the claim of negligent entrustment to a third party. 4 Seguros Comercial, 1996 AMC at 1457. 5 The need to implead other parties is also relevant to a forum non conveniens 6 analysis. Gilbert, 330 U.S. at 511. CEV A may seek to implead CMA CGM and 7 Prosegur, as both parties were responsible for providing the security that Nipponkoa 8 alleges was inadequate. But neither appear subject to this Court's jurisdiction. 9 It is equally important to note that this is a recently filed case, and very little 1 o discovery has taken place? This Court has the opportunity to prevent the unwarranted 11 prejudice to CEVA that will inevitably occur during discovery. For these reasons, 12 litigation in Mexico is expeditious, efficient, and convenient. 13 2. Public Interest Factors 14 "The public interest factors include: "(1) administrative difficulties flowing 15 from court congestion; (2) imposition of jury duty on the people of a community that 16 has no relation to the litigation; (3) local interest in having localized controversies 17 decided at home; ( 4) the interest in having a diversity case tried in a forum familiar 18 with the law that governs the action; ( 5) the avoidance of unnecessary problems in 19 conflicts of law." Creative Tech, 61 F.3d at 703-04. 20 21 The public interest factors weigh in favor of dismissal. The Central District of California is one of the busiest courthouses in the nation. 22 and "court congestion alone weighs in favor of dismissal." In re Air Crash at Madrid, 23 Spain on August 20, 2008, 2011 U.S. Dist. LEXIS 29841 at *75-76 (C.D. Cal. 24 March 22, 2011) See also Seguros Comercial, 1996 AMC at 1459: 25 The demands of a sizable criminal docket and the priority given criminal cases leads to an inevitable backlog of civil cases in this district. 26 Conservation of judicial resources is therefore an extremely important 27 2 Plaintiff has already propounded several sets of discovery on CEV A even though the 28 parties have not yet reached the Scheduling Conference stage. DMI\3428559.1 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 12 of 15 Page ID #:498 1 objective. This objective is better served by this court's dismissal of this case. It is not in the public interest to furtlier burden this docket and the 2 litigants with a case that had only a limited connection to ... the local community. 3 4 The hijacking and alleged negligence leading to the loss of cargo occurred in 5 Mexico. 6 7 Mexico also has a strong interest in resolving controversies regarding the safety of its public highways and enforcing the rights of its own corporations when they nave suffered a loss in Mexico. 8 Id. At 1460; see also Loya, 583 F.3d at 665 (Mexico has "substantial interest in 9 holding businesses operating in Mexico accountable"). 10 For this reason, the citizens of Mexico, not California, should be pressed into 11 jury duty for a trial of a case involving a theft that occurred in Mexico. California 12 jurors, on the other hand, "would be forced to decide a case with no impact on [their] 13 community." Maersk, Inc. v. Neewra, Inc., 554 F. Supp. 2d 424 (S.D.N.Y. 2008). 14 See Lust v. Nederlandse Programma Stichting, 2011 U.S. Dist. LEXIS 77618 at *6 15 (S.D.N.Y. July 18, 2011) (Netherlands preferred forum where suit had "only a 16 tangential connection to" New York). 17 Further, Plaintiffs action and/or CEVA's anticipated cross-claims against CMA 18 CGM and Prosegur, may involve questions of Mexican law. In particular, with 19 respect to Plaintiffs action for negligence, questions regarding the applicable standard 20 of care may call for the application of Mexican law. See Loya v. Starwood Hotels & 21 Resorts, 2007 U.S. Dist. LEXIS 49012 at *28-29 (W.D. Wash. July 6, 2007). The fact 22 that this Court would be "asked to untangle conflicts of laws and apply the law of 23 Mexico, which is foreign, weighs in favor of dismissal." I d. at * 29. 24 CEV A anticipate that Plaintiff will attempt to argue that the clause of the 25 Transportation Agreement stating that California law governs the interpretation of the 26 Transportation Agreement mandates that this Court hear this case. Even assuming 27 that an interpretation of the terms of the Transportation Agreement is relevant to this 28 cargo loss matter (which CEVA does not concede), the applicability of California or DMI\3428559.1 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 13 of 15 Page ID #:499 1 United States law to the various causes of action "should ... not be given conclusive or 2 even substantive weight." Gemini Capital Group, Inc. v. Yap Fishing Corporation, 3 150 F.3d 1088, 1093, 1094 (9th Cir. 1999). 4 D. Plaintiff's Choice of Forum Is Entitled To Minimal Deference 5 "[T]he degree of deference to be given to a plaintiffs choice of forum moves 6 on a sliding scale" and is entitled to minimal deference when the forum choice results 7 from blatant forum shopping. Iragorri, 274 F.3d at 71-72; see also Vivendi S.A., 586 8 F.3d at 695. Less deference is afforded to a foreign plaintiffs choice of the United 9 States as a forum. Creative Tech., 61 F.3d at 753. See Seguros Comercial: 10 11 [A] court may be justifiably suspicious that a foreign national corporation may be attempting to "obtain the benefit of favoraole law" in its selection of an American forum. 12 1996 AMC at 1454 (quoting Empresa Lines Maritimas Argentinas, S.A. v. Schichau- 13 Unterweser, A. G., 955 F.2d 368, 373 (5th Cir. 1992)). See also Monegasque De 14 Reassurances S.A.M v. Nak Naftogaz of Ukr., 311 F .3d 488, 499 (2d Cir. 2002) (little 15 deference afford foreign plaintiffs choice of United States as forum). 16 Here, Nipponkoa's choice of forum is entitled to diminished deference because 17 it has no bona fide connection to the Central District of California, or to the United 18 States for that matter. Iragorri, 274 at 71. Nipponkoa is a Japanese corporation with 19 no apparent connection to California. It is anticipated that Nipponkoa will argue that 20 T AIS is based in California and therefore it should be entitled to deference on that 21 basis. However, the cargo at issue was consigned to Toshiba Mexico, not TAIS. See 22 Nichols Decl., Ex. 1 at p. 4. California is not a convenient forum for anyone, not even 23 Nipponkoa. 24 25 IV. CONCLUSION 26 For the reasons stated herein, CEV A respectfully request that this Court enter 27 an Order dismissing the Complaint as the Central District of California is a forum non 28 conveniens and for such other and further relief as the Court deems appropriate. DMI\3428559.1 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 14 of 15 Page ID #:500 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: July 19, 2012 DUANE MORRIS LLP By: /s/ Katherine L. Nichols Katherine L. Nichols Attorneys for Defendants CEV A Logistics, U.S., Inc. and CEV A Freight, LLC DMI\3428559.1 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case 2:12-cv-05801-CAS-AGR Document 55 Filed 07/19/12 Page 15 of 15 Page ID #:501