District Court Must Consider Enforceability of Forum-Selection Clause Before Dismissing for Forum Non Conveniens

GDG Acquisitions v. Government of Belize, No. 13-11616, from SDFla

 Circuit Judge Marcus joined by District Judge Coogler (NDAla) and Senior District Judge Bowen (SDGa).

Summary: The district court dismissed this breach of contract action on forum non conveniens grounds without evaluating a forum-selection clause contained in the contract.  The lease contained a waiver of sovereign immunity and a waiver of objections to venue and claims of inconvenient forum.  The Government of Brazil (the defendant) argued that the suit should be dismissed under the Foreign Sovereign Immunities Act, the doctrine of forum non conveniens, and the doctrine of international comity. 

The panel concluded that none of these three grounds warranted dismissal.  Dismissal based on forum non conveniens was not warranted because the Supreme Court explained in Atlantic Marine, 134 S.Ct 568, that an enforceable forum-selection clause carries near-determinative weight in the forum non conveniens analysis.  Thus, the district court was required to decide whether this clause was enforceable before dismissing the case.  If it was enforceable, a dismissal based on forum non conveniens was warranted only if the private factors of that analysis unequivocally supported the selected forum. 

 Further, dismissal based on international comity constituted an abuse of discretion.  The prospective application of the doctrine was not warranted because the United States had no significant interest in the foreign adjudication of this case. Brazil’s desire to litigate the case in its own courts was not a cognizable prospective international comity interest—it was not a serious problem that would be created by federal court proceedings that would not be present if the matter were adjudicated abroad. 

The panel vacated the district court’s order of dismissal and remanded for a determination of the enforceability of the forum-selection clause.

Note: Here is one of the first published opinions decided under the Eleventh Circuit’s emergency procedure permitting a panel composed of two non-Eleventh Circuit judges.  Specifically, this panel consists of only one Eleventh Circuit judge and two district judges.  There have been a number of these cases disposed of in unpublished opinions, but few published.