United States v. 2020-11-03 | 19-35905 | PATRICK DE BORJA V. ENRIQUE RAZON, JR. | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PATRICK R. DE BORJA, individually;
MAKILING FARMS, INC., a Philippine
corporation,
Plaintiffs-Appellants,
v.
ENRIQUE R. RAZON, Jr., individually;
INTERNATIONAL CONTAINER
TERMINAL SERVICES, INC., a
Philippine corporation; ICTSI OREGON,
INC., an Oregon corporation; DOES, John
and/or Jane Does 1-20,
Defendants-Appellees.
No. 19-35905
D.C. No. 3:18-cv-01131-YY
MEMORANDUM
*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted October 28, 2020
**
Portland, Oregon
Before: GRABER, CLIFTON, and IKUTA, Circuit Judges.
FILED
NOV 3 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
* *
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

Plaintiffs, in this civil action, allege fraud in connection with ownership
interests in International Container Terminal Services, Inc. (“ICTSI”), a
Philippines company. Both parties agree that the laws of the Philippines govern
this lawsuit. The only connections this case has to the United States is the
citizenship of de Borja and one subsidiary of ICTSI. The only connection to
Oregon is the one subsidiary, ICTSI Oregon, Inc., which was formed in 2010, 20
years after the alleged fraud occurred.
The district court dismissed the action under the doctrine of forum non
conveniens, among other grounds. The court also denied Plaintiffs’ other pending
motions including a motion for jurisdiction-related discovery. Plaintiffs timely
appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. We reverse a district court’s decision to refuse jurisdiction-related
discovery only “on the clearest showing . . . [of] actual and substantial prejudice to
the litigant . . . .” Cheng v. Boeing Co., 708 F.2d 1406, 1412 (9th Cir. 1983)
(citation and quotation marks omitted). The district court had sufficient
information to conduct the forum non conveniens analysis, including determining
whether the Philippines was an adequate forum and balancing the public and
private interests. The allegations in the complaint, as well as the declaration by de
Borja, sufficiently show the case’s lack of ties to Oregon and the Plaintiffs’ desire
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to forum shop. The requested jurisdiction-related discovery would not have aided
the court with the forum non conveniens analysis. Accordingly, the district court
did not err in denying jurisdiction-related discovery.
2. “A forum non conveniens determination is committed to the sound
discretion of the district court.” Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143
(9th Cir. 2001) (citations omitted). We reverse only for “a clear abuse of
discretion.” Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1178 (9th Cir.
2006) (quoting Lueck, 236 F.3d at 1143). No such abuse of discretion is present
here. As a preliminary matter, “the court properly [took] the less burdensome
course” and resolved the case on forum non conveniens grounds, without
adjudicating the difficult jurisdictional questions. Sinochem Int’l Co., Ltd. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 436 (2007).
Further, the district court properly determined the Philippines to be an
appropriate alternative forum, conducted a reasonable analysis of the public and
private interest factors, and gave the appropriate deference to Plaintiffs’ choice of
forum. See Ayco Farms, Inc. v. Ochoa, 862 F.3d 945, 948–951 (9th Cir. 2017)
(per curiam). Contrary to Plaintiffs’s argument, the magistrate did not “improperly
shift[] the burden”: Defendants passed the “easy” test of demonstrating that the
Philippines is an adequate forum by presenting an expert declaration and citing to
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cases in which the Philippines was deemed to be an adequate forum. See Tuazon,
433 F.3d at 1178. Plaintiffs did not show that the unique circumstances made the
Philippines an inadequate forum given the legal expert reports, the past cases
against the Razon family, and the ongoing estafa case against Razon Jr. See id. at
1178–80 (shifting the burden of proving corruption to the plaintiff after the
adequacy of the foreign forum was shown by the defendant). Plaintiffs’ general
reference to the power of the Razon family does not meet the required “powerful
showing that includes specific evidence” to demonstrate an inadequate forum due
to corruption. Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1234–35
(9th Cir. 2011) (cleaned up).
The district court considered all the public and private interest factors and
properly held the balancing “strongly favor[s] dismissal under the doctrine of
forum non conveniens.” The district court evaluated all the factors, even though
some did not have specific section headings. This case arose out of allegedly
fraudulent transactions that were contemplated and executed in the Philippines by
Philippine citizens and corporations, concerned Philippine stocks and assets, and
involved Philippine government entities. De Borja does not reside in Oregon. And
ICTSI Oregon is merely a nominal defendant in the case; Plaintiffs’ alter ego
argument regarding ICTSI Oregon is inapposite because the alter ego doctrine goes
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to personal jurisdiction, not forum non conveniens analysis. Ranza v. Nike, 793
F.3d 1059, 1073 (9th Cir. 2015).
The district court did not err by giving “very little deference” to Plaintiffs’
choice of forum because the case lacked ties to the forum and Plaintiffs
participated in forum-shopping. See Vivendi SA v. T-Mobile U.S.A. Inc., 586 F.3d
689, 693–95 (9th Cir. 2009) (holding that “reduced deference” was proper when
there was no showing that the fraud was connected to a U.S. entity and there was
evidence of forum-shopping).
3. Finally, the district court did not err in dismissing the case without
conditions. The types of conditions courts sometimes place on forum non
conveniens dismissals would be inappropriate here. See Carijano, 643 F.3d at
1234–35 (discussing statute of limitations waivers and assurances of judgment
satisfaction as proper conditions on dismissal). There is no reason to believe that
Defendants will not submit to the jurisdiction of a court in the Philippines, as they
are already submitting to jurisdiction in the estafa case. Further, any award would
have to be enforced by a court in the Philippines, be it an award by a court in the
United States or in the Philippines.
AFFIRMED.
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