Imamura v. General Electric Company

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

SHINYA IMAMURA, IRYO HOJIN )

NISHIKAI, IRYO HOJIN SHADAN )

IMAMURA CLINIC, KABUSHIKI KAISHA )

BELLEVUE TRADING, KABUSHIKI KAISHA )

MARUHI, KOEKI ZAIDAN HOJIN )

JINSENKAI, KONNO GEKA CLINIC, )

AKIRA KONNO, MASAHIRO YAMAGUCHI, )

and JUNKO TAKAHASHI on behalf of )

themselves and all others )

similarly situated, )

)

Plaintiffs, )

) Civil Action

v. ) No. 17-12278-PBS

)

GENERAL ELECTRIC COMPANY, and DOES )

1-100, inclusive, )

)

Defendants. )

___________________________________)

MEMORANDUM AND ORDER

April 8, 2019

Saris, C.J.

INTRODUCTION

Plaintiffs, four individuals and six business entities from

Fukushima Prefecture in Japan, bring this proposed class action

against Defendant General Electric Co. (“GE”) seeking monetary

damages for property damage and economic harm caused by the

tragic 2011 tsunami and resulting nuclear disaster at the

Fukushima Daiichi Nuclear Power Plant (“FNPP”). Plaintiffs sue

individually and on behalf of putative classes of over 150,000

citizens and hundreds of businesses that suffered property

damage or economic injury as a result of the FNPP disaster. They

seek both compensatory and punitive damages. Plaintiffs allege

that GE negligently designed the FNPP’s nuclear reactors and

safety mechanisms. GE has moved to dismiss this lawsuit on a

number of grounds, including forum non conveniens. Because

Plaintiffs have an adequate remedy for their injuries in Japan

and trial in Massachusetts would be overly burdensome for the

parties and the Court, the Court ALLOWS GE’s motion to dismiss

for forum non conveniens (Docket No. 38).

FACTUAL BACKGROUND

As required on a motion to dismiss for forum non

conveniens, the following factual background is drawn from the

amended complaint. See Vivendi SA v. T-Mobile USA Inc., 586 F.3d

689, 691 n.3 (9th Cir. 2009); Aguas Lenders Recovery Grp. LLC v.

Suez, S.A., 585 F.3d 696, 697 (2d Cir. 2009).

I. The Fukushima Daiichi Nuclear Power Plant (“FNPP”)

The FNPP was built for the Tokyo Electric Power Company

(“TEPCO”) in Fukushima Prefecture in Japan in the late 1960s.

The FNPP contains six boiling water reactors, all of which were

designed by GE. GE constructed Units 1, 2, and 6 and provided

expertise and the designs for Units 3, 4, and 5, which were

built by Toshiba Corp. and Hitachi Ltd. GE also designed the

rest of the facility and has participated in regular maintenance

ever since.

Plaintiffs allege many problems with GE’s design of the

plant, including 1) lowering the bluff over the ocean where the

plant was built by twenty-five meters to reduce costs;

2) placing the emergency generators and seawater pumps in the

basement of the turbine building without protection against

flooding; 3) not ensuring a backup power source in case the

generators failed; and 4) not including space to accommodate

sufficient emergency equipment. These design issues were

especially problematic given the region’s well-known history of

tsunamis, including a 38.2-meter wave that killed 27,000 people

in 1896 and a 28.7-meter wave that killed 3,000 people in 1933.

II. 2011 Tsunami and Meltdown

On the afternoon of March 11, 2011, a 9.0-magnitude

earthquake struck Japan. The FNPP’s nuclear reactors shut down

automatically, and control rods were inserted into the core to

stop the nuclear reactions. The plant disconnected from the

power grid, but the diesel backup generators continued to run

the cooling systems. Within an hour, a 45-foot tsunami triggered

by the earthquake reached shore, flooded the plant, disabled the

generators, and destroyed the emergency cooling pumps.

Government authorities soon began evacuating neighboring

communities.

Without power, the plant’s cooling systems could not

function properly. As the coolant and water levels dropped in

the reactors, the nuclear cores began to heat up and melt down.

The melting released hydrogen gas, which further increased the

heat and pressure. The operators of the plant considered opening

vents to relieve the heat and pressure, but there was no

mechanism to filter out radioactive material and the neighboring

communities had not yet been fully evacuated. Hydrogen gas

continued to accumulate within the reactors, and Units 1, 3, and

4 all exploded over the next four days. The explosions released

dangerous radioactive materials into the environment. Plaintiffs

allege that GE’s problematic design of the plant and reactors

caused the nuclear explosions.

III. Aftermath of the Disaster

Fukushima Prefecture suffered immense damage from the

disaster. Many of the citizens who were evacuated from the

surrounding communities lost their homes, land, and jobs. Much

of the area around the FNPP remans uninhabitable today due to

the risk of exposure to radioactive materials. Even some

property outside the evacuation zone sustained damages from

radioactive ash.

The disaster wiped out Fukushima Prefecture’s well-known

tourist and agriculture industries. Hotels, golf courses, and

other tourist attractions in and around the evacuation zone are

still unusable. The region used to grow many agriculture

products, but it is now unsafe to consume any food from the

region. Radioactive discharge also continues to flow into the

Pacific Ocean and contaminate the local fish stock.

The disaster forced more than 1,700 companies to close.

Some business properties are covered in radioactive waste, and

the remediation measures required to reopen are extremely

expensive. Other business, such as privately owned hospitals,

medical and dental clinics, restaurants, and educational

facilities, had to close because they had no customers. Much of

the infrastructure in and around the evacuation area has not

been repaired, including government buildings, sidewalks, roads,

sewers, schools, hospitals, and roads.

IV. Japanese Compensation System

Under the Act on Compensation for Nuclear Damage (“the

Act”), only TEPCO is liable for damages arising from the FNPP

disaster. No other entity or individual involved in the

construction or operation of the FNPP plant or the response to

the disaster is required to provide compensation to victims. The

Act creates strict liability for TEPCO, so claimants must only

prove causation and damages to secure compensation. TEPCO is

liable for all damages proximately caused by the FNPP disaster.

The statute of limitations for claims against TEPCO is ten

years. There is no cap on TEPCO’s overall liability.

Victims may pursue compensation from TEPCO via three

methods: 1) submission of direct claims to TEPCO; 2) mediation

of claims against TEPCO through the Nuclear Damage Claim Dispute

Resolution Center (“ADR Center”); and 3) lawsuits against TEPCO.

These avenues for compensation are not mutually exclusive: for

example, a victim may file an administrative claim and then

initiate a lawsuit if she is unsatisfied with her compensation.

A victim seeking compensation directly from TEPCO submits a

standard form with evidence of her loss. TEPCO reviews the form

and pays the victim based on its uniform guidelines. Among other

forms of damages, TEPCO’s guidelines call for compensation to

businesses for reputational harm and loss of sales. Over two

million victims have filed claims directly with TEPCO.

The ADR Center is a public mediation service under the

supervision of the Dispute Reconciliation Committee for Nuclear

Damage Compensation (“DRC”). The ADR Center is overseen by a

three-member committee comprised of two independent lawyers and

a law professor. A victim may file a claim with the ADR Center

in addition to, or as an alternative to, a direct claim with

TEPCO. The DRC has issued a number of guidelines for

compensation for the FNPP disaster. Although these guidelines do

not have the force of law, they provide the framework for

mediations through the ADR Center. The guidelines provide for

compensation for lost real estate value and business

interruption damages, including “rumor damages” for businesses

in certain industries that are subject to customer concerns

about radioactive contamination. There is no filing fee for

submitting a claim to the ADR Center, and claimants can proceed

pro se or with an attorney. The mediations are supervised by

attorneys. As of February 1, 2019, claimants have filed 24,426

cases with the ADR Center, 18,890 of which have resulted in

settlements.

Because the claims process with TEPCO and through the ADR

Center is confidential, there is little publicly available

information on the value of these settled claims. Settlements

through the ADR Center appear to vary widely. Certain claimants,

including some who reside outside the designated evacuation

zones, have received nothing from TEPCO. Others have received as

little as two-and-a-half percent of the damages sought. On the

other hand, TEPCO has agreed to pay a number of businesses more

than $500,000 for property damage and business losses.

A victim may file a lawsuit against TEPCO right away or

after receiving an unsatisfactory settlement through these other

mechanisms. Japanese law recognizes tort causes of action and

awards damages for harm to property and business losses.

Although there is no mechanism under Japanese law to file a

class action for claims arising from a nuclear disaster,

multiple plaintiffs may join together in one lawsuit. In fact, a

number of parties have already joined together in mass actions

against TEPCO. To file a lawsuit, a plaintiff must pay a filing

fee of no more than one percent of the value of the case. As of

March 30, 2018, around 440 lawsuits had been filed against

TEPCO, 50 of which ended with judgments and 110 with

settlements.

There is no comprehensive database of Japanese court

judgments. Anecdotally, judgments in cases involving property

damage and business losses have ranged from $182 to $658,462 per

plaintiff. To avoid double recovery, courts reduce their

judgments to account for compensation the plaintiffs have

received from TEPCO via other means.

As of February 15, 2019, TEPCO has paid out more than $79

billion to business entities and individuals for losses arising

from the FNPP disaster. Many of the claims have involved

property damage and economic loss for business activities. To

ensure that operators of nuclear plants like TEPCO have the

money to pay claims, the Act requires that they carry insurance

and enter into an indemnity agreement with the Japanese

government. TEPCO has so far received $1.7 billion from the

government through its indemnity agreement. Furthermore, after

the FNPP disaster, the Japanese government set up the Nuclear

Damage Compensation and Decommissioning Facilitation Corporation

to contribute further capital to TEPCO for compensation. Through

bond issuances, the government plans to contribute around $121

billion to the NDF.

V. Procedural History

Plaintiffs are four Japanese citizens and six Japanese

business entities that lived or operated in Fukushima Prefecture

at the time of the FNPP disaster. They filed suit against GE on

November 17, 2017. After GE moved to dismiss the original

complaint, Plaintiffs filed an amended complaint on May 21,

2018. Plaintiffs bring seven claims: negligence (Count I),

strict product liability for manufacturing and design defects

(Counts II and III), and damage to real property (Count IV)

under Massachusetts law; and negligence (Count V), failure to

warn (Count VI), and diminution of value to real property and

business interests (Count VII) under Japanese law.

On July 19, 2018, GE moved to dismiss the amended complaint

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and

the doctrine of forum non conveniens. GE argues that 1) the

Convention on Supplementary Compensation for Nuclear Damage

(“CSC”) strips the Court of subject matter jurisdiction;

2) Japanese law applies to this lawsuit and Japan’s Act on

Compensation for Nuclear Damage channels all liability for the

FNPP disaster to TEPCO, the operator of the plant; 3) the case

should be dismissed under forum non conveniens; 4) Plaintiffs’

claims are time-barred by the Massachusetts statutes of

limitations and repose; and 5) Plaintiffs fail to state a claim

for various other reasons.

If “a foreign tribunal is plainly the more suitable arbiter

of the merits of the case,” a court may dismiss for forum non

conveniens without resolving whether it has subject matter

jurisdiction. Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,

549 U.S. 422, 425 (2007). The Court therefore assumes without

deciding that it has jurisdiction over this lawsuit despite the

exclusive jurisdiction provision of the CSC. See Cooper v. Tokyo

Elec. Power Co., 860 F.3d 1193, 1205 (9th Cir. 2017) (holding

that the CSC does not strip courts of jurisdiction over claims

arising from the FNPP disaster). For the reasons set forth

below, the Court finds that dismissal is appropriate under the

doctrine of the forum non conveniens and therefore does not

address GE’s other arguments for dismissal.

DISCUSSION

Forum non conveniens permits dismissal of a case, even if

the court has jurisdiction, when “an alternative forum is

available in another nation which is fair to the parties and

substantially more convenient for them or the courts.”

Mercier v. Sheraton Int’l, Inc., 981 F.2d 1345, 1349 (1st Cir.

1992). The doctrine is “flexible” and “practical,” and its

application depends on the facts of a given case. Howe v.

Goldcorp Invs., Ltd., 946 F.2d 944, 950 (1st Cir. 1991). “When a

defendant moves for dismissal on forum non conveniens grounds,

it bears the burden of showing both that an adequate alternative

forum exists and that considerations of convenience and judicial

efficiency strongly favor litigating the claim in the

alternative forum.” Iragorri v. Int’l Elevator, Inc., 203 F.3d

8, 12 (1st Cir. 2000).

I. Adequate Alternative Forum

The sine qua non of forum non conveniens is the existence

of an adequate alternative forum. See Associação Brasileira de

Medicina de Grupo v. Stryker Corp., 891 F.3d 615, 620 (6th Cir.

2018) (“If there is no suitable alternate forum where the case

can proceed, the entire inquiry ends.”); see also Iragorri, 203

F.3d at 13 (directing courts to begin with the adequate

alternative forum analysis). The defendant bears the burden of

showing an adequate alternative forum and must put forth some

evidence that such a forum exists. See Mercier v. Sheraton

Int’l, Inc., 935 F.2d 419, 425 (1st Cir. 1991). This requirement

is met if “the alternative forum addresses the types of claims

that the plaintiff has brought and . . . the defendant is

amenable to service of process there.” Iragorri, 203 F.3d at 12.

In Piper Aircraft Co. v. Reyno, the Supreme Court described

the adequate alternative forum requirement as follows:

Of course, if the remedy provided by the alternative

forum is so clearly inadequate or unsatisfactory that

it is no remedy at all, the unfavorable change in law

may be given substantial weight; the district court

may conclude that dismissal would not be in the

interests of justice. In these cases, however, the

remedies that would be provided by the Scottish courts

do not fall within this category. Although the

relatives of the decedents may not be able to rely on

a strict liability theory, and although their

potential damages award may be smaller, there is no

danger that they will be deprived of any remedy or

treated unfairly.

454 U.S. 235, 254-55 (1981) (footnote omitted); see also id. at

254 n.22 (“[W]here the remedy offered by the other forum is

clearly unsatisfactory, the other forum may not be an adequate

alternative . . . .”). This language speaks only about whether

dismissal would deprive the plaintiff of a satisfactory remedy.

Courts cannot consider that the law in the alternative forum may

be more favorable to the defendant. See id. at 252 n.19; see

also de Melo v. Lederle Labs., 801 F.2d 1058, 1061 n.3 (8th Cir.

1986) (noting that the Court held in Piper that “the fact that a

defendant may be engaged in reverse forum shopping . . . should

not enter the district court’s analysis”).

A remedy available through an administrative compensation

scheme can render a foreign country an adequate alternative

forum. See, e.g., Veljkovic v. Carlson Hotels, Inc., 857 F.3d

754, 756 (7th Cir. 2017); Tang v. Synutra Int’l, Inc., 656 F.3d

242, 250 (4th Cir. 2011); Lueck v. Sundstrand Corp., 236 F.3d

1137, 1144-45 (9th Cir. 2001). But see Nat’l Hockey League

Players’ Ass’n v. Plymouth Whalers Hockey Club, 166 F. Supp. 2d

1155, 1164 (E.D. Mich. 2001) (“Piper does not appear to consider

an administrative remedy adequate.”). The Ninth Circuit’s

reasoning in Lueck is instructive. Lueck involved claims brought

by New Zealand citizens arising from an airplane crash that

occurred in New Zealand. 236 F.3d at 1140. The Ninth Circuit

acknowledged that New Zealand law prohibited the plaintiffs from

suing the defendants, the manufacturers of the aircraft and

various components, and required them to seek compensation

through an administrative claims process. Id. at 1141-42, 1144-

45. But it noted that “[t]he forum non conveniens analysis does

not look to the precise source of the plaintiff's remedy” and

that it was irrelevant whether the plaintiffs could “maintain

[the] exact suit” in the foreign forum. Id. at 1144-45. Instead,

the court found New Zealand to be an adequate alternative forum

because it “has provided and continues to provide a remedy for

[their] losses.” Id. at 1144.

This analysis dovetails with Piper’s emphasis on the

existence of any adequate remedy for a plaintiff’s injury. Thus,

“a foreign forum will be deemed adequate unless it offers no

practical remedy for the plaintiff’s complained of wrong,”

regardless of the source of that remedy. Id.; see also Tang, 656

F.3d at 250-51 (holding that a settlement fund created by

manufacturers of contaminated infant formula rendered China an

adequate alternative forum because “the forum non conveniens

doctrine does not limit adequate alternative remedies to

judicial ones”).

The parties agree that Plaintiffs cannot bring their claims

against GE in Japan because the Act channels all liability from

the FNPP disaster to TEPCO. GE contends that Plaintiffs still

have three avenues for compensation in Japan: 1) direct claims

filed with TEPCO, 2) claims against TEPCO through the ADR

Center, and 3) damages lawsuits against TEPCO. Plaintiffs do not

dispute that these avenues are available to them. Instead, they

emphasize that they cannot secure a remedy from GE in Japan. To

support this argument, they rely on cases that suggest that a

foreign forum counts as an adequate alternative forum only when

all parties to the American litigation can come under the

jurisdiction of the foreign forum’s courts. See, e.g. Associação

Brasileira, 891 F.3d at 620 (“[A] foreign forum is not truly

‘available’ . . . if the foreign court cannot exercise

jurisdiction over both parties.”); Mercier, 935 F.2d at 424

(“[A] finding that there is a satisfactory alternative forum

requires that . . . all parties can come within that forum’s

jurisdiction . . . .”); see also Deb v. SIRVA, Inc., 832 F.3d

800, 807-08 (7th Cir. 2016) (stating without analysis that “the

defendants have the burden of demonstrating that an alternate

forum is available — in other words, that [the plaintiff] could

sue these defendants . . . in India”).

In the cases Plaintiffs cite, however, the courts did not

directly address the question presented here of whether the

foreign forum must permit a remedy against the specific

defendant sued in the American litigation where the forum

provides an adequate remedy from another party or entity. Based

on the language of Piper and the persuasive reasoning of the

administrative compensation cases, the answer to this question

is “no,” so long as the alternative forum provides an adequate

remedy.

GE must show that the alternative remedy is not “so clearly

inadequate or unsatisfactory that it is no remedy at all.”

Piper, 454 U.S. at 254; see also Nemariam v. Fed. Democratic

Republic of Eth., 315 F.3d 390, 395 (D.C. Cir. 2003) (holding

that an administrative commission provided an inadequate remedy

because it could not award damages to the plaintiff directly).

GE has met this burden by demonstrating that many plaintiffs

have successfully received satisfactory compensation through

lawsuits against TEPCO in Japanese courts and claims directly

with TEPCO and through the ADR Center.

TEPCO is strictly liable for damages proximately caused by

nuclear damage from the FNPP disaster. Plaintiffs can sue TEPCO

in Japanese courts until the ten-year statute of limitations

expires in 2021. Tort claims are cognizable under Japanese law,

and Japanese courts award damages for harm to property and

economic losses. Plaintiffs need not pursue mediation through

the ADR Center before filing lawsuits. They can also seek

compensation by filing claims directly with TEPCO or through the

ADR Center. There is no filing fee, and Plaintiffs can be

represented by an attorney. The mediations are governed by

guidelines issued by the Japanese government. Though it does not

provide a judicial remedy, the ADR Center mediation is similar

to the administrative compensation schemes upheld in cases like

Lueck. TEPCO’s unlimited liability and the financial support of

the Japanese government ensure that TEPCO will continue to be

able to pay compensation via judicial and administrative

mechanisms.

Plaintiffs attack these routes to a remedy in a number of

ways. First, they argue that the compensation award they can win

through either of these routes is inadequate. A remedy is

inadequate only if it is “basically unjust.” Ahmed v. Boeing

Co., 720 F.2d 224, 226 (1st Cir. 1983). Although Plaintiffs

contend that judgments and settlements directly from TEPCO or

through the ADR Center are not as high as a verdict in the

United States might be, GE has demonstrated that victims have

received tens or hundreds of thousands of dollars in

compensation for property damage and business losses. These

verdicts are not unjust. See, e.g., Loya v. Starwood Hotels &

Resorts Worldwide, Inc., 583 F.3d 656, 664, 666 (9th Cir. 2009)

(finding Mexico to be an adequate forum even though it capped

wrongful death damages at $12,000 to $13,000); Gonzalez v.

Chrysler Corp., 301 F.3d 377, 380-82 (5th Cir. 2002) (finding

Mexico to be an adequate forum even though it capped damages for

the loss of a child’s life at $2,500). The fact that victims may

pursue claims through litigation after having received some

compensation via the administrative scheme buttresses GE’s claim

that Japan is providing an adequate remedy. Plaintiffs provide

no reason to believe the average victim is receiving unjust

compensation. They state that certain individuals received no

compensation or only a fraction of what they sought, but they do

not explain what damages they suffered or how the FNPP disaster

caused those damages. The Court therefore cannot conclude from

these anecdotal examples that individuals with meritorious

claims are receiving inadequate compensation.

Second, Plaintiffs raise what they see as two deficiencies

in the Japanese judicial system. Plaintiffs are correct that

they could not bring a class action against TEPCO in Japan.

However, they can join together in a single lawsuit, as many

have done in litigation arising from the disaster. See

Fischer v. Magyar Allamvasutak Zrt., 777 F.3d 847, 862 (7th Cir.

2015) (holding that the ability of multiple plaintiffs to join

together in one lawsuit meant that the absence of class action

procedures did not render the foreign forum inadequate).

Japanese courts require payment of a filing fee to initiate a

lawsuit, but it is never more than one percent of the value of

the case. While the Court recognizes that many class members may

be indigent, Plaintiffs have not shown that such an amount is

unreasonable. Compare Henderson v. Metro. Bank & Tr. Co., 502 F.

Supp. 2d 372, 379-80 (S.D.N.Y. 2007) (denying a motion to

dismiss for forum non conveniens where three plaintiffs faced a

$5 million filing fee to bring a lawsuit in the Philippines),

with Stroitelstvo Bulg. Ltd. v. Bulg.-Am. Enter. Fund, 589 F.3d

417, 424 (7th Cir. 2009) (declining to find Bulgaria to be an

inadequate forum based on its four percent filing fee), and

Mercier, 981 F.2d at 1353 & n.7 (finding Turkey to be an

adequate forum despite the required fifteen percent bond for

foreign litigants to initiate a lawsuit).

Third, Plaintiffs assail the ADR Center mediation process

because it is complex, opaque, and managed by TEPCO. They

analogize this case to In re Assicurazioni Generali S.p.A

Holocaust Insurance Litigation, in which the court found a

commission set up by several insurance companies and nonprofits

to be an inadequate forum to resolve unpaid Holocaust-era

insurance claims because it was a nonjudicial, private entity

that was controlled by the insurance companies and there was

nothing stopping the companies from withdrawing from the

commission. See 228 F. Supp. 2d 348, 353-58 (S.D.N.Y. 2002). The

ADR Center is a public mediation forum established under

Japanese law. It is therefore independent from TEPCO, and TEPCO

cannot unilaterally withdraw. Plaintiffs put forth no evidence

to indicate that TEPCO is not participating in good faith with

the ADR Center, but even if it were not, Plaintiffs could sue

TEPCO in court for an adequate remedy. Although the

administrative guidelines for seeking compensation from TEPCO

directly or through the ADR Center are complex, understanding

the process is no more difficult than understanding how to file

and prosecute a lawsuit. In any event, the fact that over two

million claimants have filed for compensation directly with

TEPCO and almost twenty-five thousand have done so through the

ADR Center belies the notion that the process is too complex for

class members to secure an adequate remedy.

Finally, Plaintiffs contend that the guidelines that govern

TEPCO’s direct claims process and mediations through the ADR

Center exclude certain class members from compensation.

Specifically, they point to class members outside of the

evacuation zones and in areas where government restrictions have

been lifted. As Plaintiffs acknowledge, however, the guidelines

expressly contemplate awarding compensation to otherwise

excluded claimants who can demonstrate a causal relationship

between the FNPP disaster and their damages. Most importantly,

an individual or business that does not receive compensation

through the administrative scheme can seek a remedy through the

courts. Accordingly, Japan is an adequate alternative forum for

Plaintiffs’ claims.

II. Private and Public Interest Factors

A. Legal Standard

The Court therefore proceeds to analyze the private and

public interest factors. In doing so, a court must give the

plaintiff “some degree of deference for his original choice of

forum.” Adelson v. Hananel, 510 F.3d 43, 53 (1st Cir. 2007).

Accordingly, a court can only dismiss a case if the balance of

private and public interest factors “strongly favor[s]”

resolving the claims in the alternative forum. Iragorri, 203

F.3d at 12; see also Adelson, 510 F.3d at 54 (declining to

dismiss where the balance of factors was “in equipoise”). A

foreign plaintiff’s choice of a U.S. forum, however, receives

less deference than an American plaintiff’s choice of his home

forum because “the assumption that the chosen forum is

appropriate is in such cases ‘less reasonable.’” Sinochem Int’l

Co., 549 U.S. at 430 (quoting Piper, 454 U.S. at 255-56). The

plaintiff’s choice of forum also receives less deference if it

appears motivated by forum shopping. See Interface Partners

Int’l Ltd. v. Hananel, 575 F.3d 97, 102 n.9 (1st Cir. 2009).

Among the private interest factors courts consider are

1) the relative ease of access to proof; 2) the availability and

costs of compulsory process for attendance of unwilling

witnesses; 3) comparative trial costs; 4) the ability to enforce

a judgment; and 5) other practical problems that would make the

trial cumbersome, time-consuming, or costly. Iragorri, 203 F.3d

at 12; Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 719 (1st Cir.

1996). Factors relevant to the public interest include

1) administrative difficulties of docket congestion; 2) the

local interest in adjudicating the lawsuit; 3) avoidance of

unnecessary choice of law or foreign law questions; and 4) the

unfairness of jury duty for citizens in an unrelated forum.

Iragorri, 203 F.3d at 12; Mercier, 981 F.2d at 1354. These

factors are “illustrative rather than all-inclusive,” and “the

ultimate inquiry is where trial will best serve the convenience

of the parties and the ends of justice.” Iragorri, 203 F.3d at

12 (quoting Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S.

518, 527 (1947)).

B. Deference to Plaintiffs’ Choice of Forum

Plaintiffs are all Japanese citizens and businesses with no

connection to the United States. It seems they sought an

American forum at least in part to avoid Japanese law absolving

GE of liability for the FNPP disaster. Plaintiffs’ choice to

file their lawsuit in Massachusetts is thus entitled to some,

but not great, deference. The lesser deference given to

Plaintiffs’ choice of forum differentiates this forum non

conveniens analysis from the Ninth Circuit’s analysis in Cooper,

another lawsuit arising from the FNPP disaster where the

plaintiffs were U.S. citizens and members of the U.S. Navy whose

choice of an American forum was entitled to more deference. See

860 F.3d at 1211.

C. Private Interest Factors

The private interest factors weigh in favor of dismissal

because of the difficulty of accessing relevant evidence for use

in this Court and the Court’s inability to compel production of

important Japanese documents and testimony from Japanese

witnesses and to implead potentially liable third parties.

1. Relative Ease of Access to Sources of Proof

Because the vast majority of the events giving rise to

Plaintiffs’ claims took place in Japan, GE plausibly states that

it would use significant material evidence currently located in

Japan at the trial. As GE notes, all evidence concerning the

plant’s layout at the time of the disaster, changes TEPCO made

after GE installed the reactors, safety measures and maintenance

steps TEPCO took or failed to take, what occurred when the

tsunami struck, and how TEPCO and the government responded to

the disaster is located in Japan. So is all evidence about

whether GE’s design caused Plaintiffs’ property damage and

economic harm and what damages Plaintiffs suffered. Most

witnesses would be current and former TEPCO employees and

officers, Japanese government officials, and Plaintiffs and

their associates. GE’s attorney states in an affidavit that he

expects to rely on all of this evidence at trial. The burdens of

obtaining this evidence and translating it for an American court

are substantial. See Blanco v. Banco Indus. de Venez., S.A., 997

F.2d 974, 982 (2d Cir. 1993) (noting that the “significant cost

to the parties and delay to the court” of having to translate

all of the relevant documents and testimony “militate[] strongly

in favor of” dismissal).

Plaintiffs argue that documents and witnesses relating to

the design, manufacture, and maintenance of the reactors are

located in the United States within GE’s control. Some important

evidence relevant to this case, specifically concerning GE’s

maintenance of the FNPP in the years immediately preceding the

disaster, is likely in the United States. However, since the

FNPP’s reactors were designed and deployed more than fifty years

ago, it is unlikely there are many witnesses in the United

States knowledgeable about the original design. The witnesses

and documents in Japan likely far outnumber those in the United

States, and the Japanese evidence is central to many core issues

in the litigation, such as causation, damages, and apportionment

of liability among third parties. See Mercier, 935 F.2d at 428

(requiring courts to consider the relevance and importance of

evidence located in the two fora).

The Court does not discount that modern litigation often

requires transporting witnesses transnationally. But litigation

in this Court would increase the burden of accessing material

evidence. The difficult access to sources of proof therefore

favors dismissal.

2. Availability of Compulsory Process and Cost of

Obtaining Attendance of Unwilling Witnesses

The Court’s inability to compel the production of documents

or other key physical evidence from sources in Japan increases

the evidentiary problems with litigating this case in

Massachusetts. J.C. Renfroe & Sons, Inc. v. Renfroe Japan Co.,

515 F. Supp. 2d 1258, 1273 (M.D. Fla. 2007). Although Plaintiffs

have evidence they can bring to Massachusetts to prove causation

and damages, many important documents relating to TEPCO’s

maintenance of the plant and the Japanese government’s response

to the disaster are not in the control of either party and are

outside the reach of the Court. GE plans to argue that the

reactor meltdown would not have occurred, or would have caused

less damage, if TEPCO, Toshiba, and Hitachi had not modified the

plant and if TEPCO and the Japanese government had better

managed the disaster response. It cannot effectively raise this

defense without access to the Japanese evidence. See de Melo,

801 F.2d at 1062-63 (finding significant that evidence relevant

to a party’s defenses was located in Brazil outside the reach of

American courts).

Nor could the Court require the attendance at trial of the

many key witnesses located in Japan. J.C. Renfroe, 515 F. Supp.

2d at 1271. GE’s attorney stated that no Japanese witness would

willingly testify. This is an exaggeration: surely at least some

witnesses affiliated with Plaintiffs would willingly testify.

But it is likely that many TEPCO employees and Japanese

government officials would be unwilling to do so. Given that

these witnesses may be key to GE’s defenses, the inability to

require them to testify favors dismissal. See Interface

Partners, 575 F.3d at 105; Mercier, 981 F.2d at 1356.

Furthermore, the Hague Convention’s streamlined method of

securing transcribed testimony is not available here because

Japan has not signed on to the Convention. See J.C. Renfroe, 515

F. Supp. 2d at 1272. Instead, under the U.S.-Japan Consular

Convention, a party seeking to acquire testimony must take a

deposition at a U.S. consulate supervised by a consular officer.

Id. It usually takes six months to a year to obtain testimony

from Japanese witnesses. Id. Notably, this process only applies

to willing witnesses; to compel testimony from unwilling

witnesses, parties must ask a U.S. court to issue a “letter

rogatory” that passes through diplomatic channels and must be

enforced by a Japanese judge. The benefits of avoiding these

burdensome and time-consuming methods of acquiring evidence also

favor dismissal. See, e.g., Chang v. Baxter Healthcare Corp.,

599 F.3d 728, 735 (7th Cir. 2010).

3. Ability to Enforce a Judgment

GE argues that the fact that a Japanese court may not

enforce a class action judgment against it supports dismissal.

Since GE is a Massachusetts corporation with significant assets

here, it is unclear why Plaintiffs would need to seek to enforce

an American judgment in Japan. This factor does not support

either party.

4. Other Practical Problems

If the litigation remains in Massachusetts, GE could not

implead third parties who may share responsibility for the

disaster: TEPCO, the operator of the FNPP; Toshiba and Hitachi,

which were involved in its construction; and the Japanese

government, which helped respond to the disaster. It is unclear

whether this Court has personal jurisdiction over Toshiba,

Hitachi, or TEPCO, as Plaintiffs point to no contacts these

Japanese corporations had with Massachusetts that relate to the

FNPP plant. See LP Sols. LLC v. Duchossois, 907 F.3d 95, 102

(1st Cir. 2018) (noting that one requirement for personal

jurisdiction is that the “claim directly arises out of or

relates to the defendant’s forum activities”); see also

Bartel v. Tokyo Elec. Power Co., No. 17-cv-1671, 2018 WL 312701,

at *8 (S.D. Cal. Jan. 5, 2018) (dismissing claims against TEPCO

in connection with the FNPP disaster for lack of personal

jurisdiction). The Foreign Sovereign Immunities Act likely

renders the Japanese government beyond the reach of the Court as

well. See 28 U.S.C. § 1602.

Because GE plans to pin at least some responsibility on

these third parties, it would suffer prejudice from its

inability to implead them. “Such an accusation is surely less

persuasive when aimed at a set of empty chairs.” Satz v.

McDonnell Douglas Corp., 244 F.3d 1279, 1284 n.4 (11th Cir.

2001). Plaintiffs argue that GE could seek indemnity or

contribution against the absent third parties. It is unclear

whether any American court would have jurisdiction over these

parties in an indemnity or contribution action, and the

channeling of liability to TEPCO under Japanese law likely

precludes such an action against Toshiba and Hitachi in Japan.

Accordingly, the inability to implead third parties favors

dismissal. See Piper, 454 U.S. at 259 (noting in support of

dismissal that the defendants could not implead third parties

whose “[j]oinder . . . is crucial to the presentation of [their]

defense”); Iragorri, 203 F.3d at 15 (upholding dismissal where

the defendant “would be unable to implead other potentially

responsible parties”).

D. Public Interest Factors

The public interest factors also favor dismissal because

Japan’s interest in this lawsuit far outweighs the local

interest, the case involves complex choice of law and foreign

law questions, and adjudication of this lawsuit would

significantly burden the Court.

1. Local Interest in the Lawsuit

Japan’s interest in this lawsuit dwarfs any interest of the

United States or Massachusetts. “[A] sovereign has a very strong

interest when its citizens are allegedly victims and the injury

occurs on home soil.” SME Racks, Inc v. Sistemas Mecanicos Para

Electronica, S.A., 382 F.3d 1097, 1104 (11th Cir. 2004); accord

Piper, 454 U.S. at 260. The FNPP disaster took place in Japan

and harmed hundreds of thousands of Japanese citizens and

businesses. The Japanese government extensively investigated the

disaster and has brought criminal charges against TEPCO

executives. See Lueck, 236 F.3d at 1147 (noting that New

Zealand’s interest was “extremely high” because the “accident

and its aftermath, including the accident investigation, the

post-investigation activity, and the various legal proceedings

including an ongoing criminal probe, have all received

significant attention by the local media”).

Additionally, this lawsuit raises complex questions about

the safe design of nuclear reactors and the future of nuclear

energy in Japan. Through the Act on Compensation for Nuclear

Damage’s scheme for providing compensation for nuclear

disasters, the Japanese government has shown a strong interest

in determining how to allocate liability and compensation for

disasters occurring on its soil. This allocation is key for

ensuring that companies are willing to enter the nuclear power

business in Japan and citizens are adequately compensated when

something goes wrong, which the Act lists as its two purposes.

Adjudicating this lawsuit in the United States would interfere

with the system Japan has set up for handling nuclear disasters.

The United States and Massachusetts certainly have an

interest in deterring their corporate citizens from distributing

dangerous products, but this interest is not strong in

comparison to Japan’s interest in this lawsuit. Piper, 454 U.S.

at 260-61. Regardless of whether the CSC’s exclusive

jurisdiction provision strips this Court of jurisdiction over

this lawsuit, it demonstrates the international consensus that a

dispute over liability from nuclear disasters should be

adjudicated in the country where it occurs, not in other

jurisdictions with more tenuous connections to the disaster.

Plaintiffs argue that the local interest is strong here

because GE reactors are present in nuclear power plants in

Massachusetts and throughout the United States. However, this

lawsuit centers on the Japanese nuclear regulatory system and

other circumstances unique to the FNPP. Any local interest in

the litigation cannot match Japan’s extremely strong interest.

2. Choice of Law and Application of Foreign Law

This case involves complex choice of law and foreign law

issues. For tort cases, Massachusetts choice of law rules

generally require application of “the substantive laws of the

jurisdiction wherein the tort occurred.” Cosme v. Whitin Mach.

Works, Inc., 632 N.E.2d 832, 834 (Mass. 1994). Because the

disaster occurred in Japan, the Court would likely apply

Japanese law to resolve this dispute. See Cooper v. Tokyo Elec.

Power Co., No. 12cv3032-JLS (JLB), 2019 WL 1017266, at *9 (S.D.

Cal. Mar. 4, 2019) (holding that “Japanese law applies to the

issue of GE’s liability” to members of the U.S. Navy allegedly

exposed to radiation during the FNPP disaster), appeal filed,

No. 19-55295 (9th Cir. Mar. 14, 2019). Although this factor is

not dispositive, as American courts often apply foreign law, it

nevertheless points to dismissal. See Piper, 454 U.S. at 260 &

n.29.

3. Court Congestion and Burden

Adjudicating this dispute would place a heavy burden on the

Court. Plaintiffs seek to certify two classes of over 150,000

Japanese individuals and business entities. As a preliminary

matter, certification of a damages class is unlikely because

defendant would have a strong argument that the individual

damages issues would predominate. Assuming this Court certifies

a class under Federal Rule of Civil Procedure 23(b)(3),

discovery into Japanese damages would be complex and extensive.

Trial would require expending significant time and resources on

interpreting witness testimony and translating reams of

documents into English. Given the lack of a significant local

interest in the lawsuit, the burdens this lawsuit would place on

the Court also favor dismissal. See Lueck, 236 F.3d at 1147.

E. Conclusion

Many of the private and public interest factors support

dismissal, most notably the difficulty in accessing evidence

located in Japan, the difficulty of compulsory process, and the

lack of a strong local interest in the dispute. Although one

factor, the enforceability of a judgment, is neutral, none

supports continuing to adjudicate this lawsuit in Massachusetts.

Accordingly, although Plaintiffs’ choice of forum is entitled to

some deference, GE has met its burden of demonstrating that

“considerations of convenience and judicial efficiency strongly

favor [resolving] the claim in the alternative forum.” Iragorri,

203 F.3d at 12.

ORDER

The motion to dismiss is ALLOWED (Docket No. 38).

SO ORDERED.

/s/ PATTI B. SARIS

Hon. Patti B. Saris

Chief United States District Judge