# Imamura v. General Electric Company

> District Court, D. Massachusetts · April 8, 2019

URL: https://www.frixlaw.com/law-library/cases/10197622

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** April 8, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10197622

## How later opinions describe it (automated extraction)

- declining to dismiss where the balance of factors was “in equipoise”
- holding that the CSC does not strip courts of jurisdiction over claims arising from the FNPP disaster
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10197622. Public record. Not legal advice.