Cameron Auxer v. Alcoa Inc

NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________________

NOs. 10-2131, 10-2132, 10-2133, 10-2134 and 10-2135

______________________

CAMERON B. AUXER, an individual; FIONA HELEN

BLAKE, an individual; MARIE PATRICIA CATTACH,

an individual; ANTHONY CHARLES FORDHAM, an

individual; EDWARD CHARLES STUART-HERRING,

an individual and as Executor of THE ESTATE OF GLENYS

JOY HERRING, deceased; MIRANDA JO MILLSTEED, an

individual; IAN ROBERT YOUNG, an individual;

FRANCESCO ANTONIO ANZELLINO, an individual

Appellants in No. 10-2131

v.

ALCOA, INC.

________________________

ANGELINA FERRARO ANGI, et al.

Appellants in No. 10-2132

v.

ALCOA, INC.

_________________________

TERRANCE APLIN; KEVIN ANTHONY ATKINS;

MAUREEN BOLTON, Trustee ad litem on behalf of

PAUL BOLTON, Deceased; JAROSLAV BOUSKA;

STAVROULLA CADWALLENDER, Executor of the

Estate of HAROLD JOSEPH MARTIN CADWALLENDER,

Deceased; KINSLEY DREW; RAYMOND FAMLONGA;

LEN FARMER; ROGER WALTER FROUD; JAMES HAGAN;

ANTHONY WILLIAM HALDEN; GARY HARROWER;

MICHAEL JAMES JENKIN; NORMAN JOHNSON; LESLIE

KINSELLA; GEORGE MACFARLANE; RAYMOND MCDONALD;

DERRICK NICHOLS; ERIC PEGG; AUDREY PHILLIPS,

Trustee ad litem on behalf of JOHN RONALD PHILLIPS,

Deceased; DAVID THOMPSON

Appellants in No. 10-2133

v.

ALCOA, INC.

_______________________________

FRANK BELLAIRS; GARY ECCLES; GINO FERRARO;

ALEXANDER JOVANOVICH; KEVIN MCDONALD; MERVYN

MCDONALD; FRANK RHYS MCGINNIS; FRANK MELIA;

SANDRA MUTCH; GRAEME NEWTON; PATRICIA NEWTON;

WAYNE NICHOLSON; VINCENT PISCIONERI; VINCENT

PUCCIO; DAVID KENNETH PUZEY; PETER STAMPONE;

PHILIP STEWART; LIONEL EDWARD TURNER;

VINCENT MICHAEL VALLI,

Appellants in No. 10-2134

v.

ALCOA, INC.

________________________________

CLIVE BARRADEEN; DAVID AUBREY COLLINS; BRENDEN HATTON;

CLIVE LUNN; LEONARD PERKINSON; JAMES RALPH; GREGORY E.

SUDHOLZ,

Appellants in No. 10-2135

v.

ALCOA, INC.

___________________________

On Appeal from the United States District Court

For the Western District of Pennsylvania

(D.C. Civil Nos. 2-09-cv-00995, 2-09-cv-01429,

2-09-cv-01430, 2-09-cv-01431, 2-09-cv-01438)

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District Judge: Hon. David Stewart Cercone

_________________________

Argued December 13, 2010

BEFORE: SLOVITER, GREENAWAY, JR., and

STAPLETON, Circuit Judges

___________________________

(Opinion Filed January 20, 2011)

__________________________

William R. Caroselli (Argued)

Kelly L. Enders

Susan A. Meredith

Caroselli, Beachler, McTiernan & Conboy

20 Stanwix Street – 7th Floor

Pittsburgh, PA 15222

Attorneys for Appellants

Neil K. Gilman

Hunton & Williams

1900 K Street, N.W. – Suite 1200

Washington, DC 200

and

Lori E. Jarvis

Thomas R. Waskom

Hunton & Williams

951 East Byrd Street

13th Floor, East Tower, Riverfront Plaza

Richmond, VA 23219

and

Thomas M. Reiter (Argued)

Richard W. Hosking

James C. Swetz

K&L Gates

210 Sixth Avenue

Pittsburgh, PA 15222

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and

Rene P. Tatro

Tatro, Tekosky & Sadwick

333 South Grand Avenue – Suite 4270

Los Angeles, CA 90071

Attorneys for Appellee

__________________________

OPINION OF THE COURT

__________________________

STAPLETON, Circuit Judge:

These five consolidated cases involve 244 plaintiffs who claim to have suffered

personal injuries caused by their exposure to emissions from three alumina refineries in

Western Australia. With one exception, all plaintiffs live in Australia. One plaintiff

moved to Pennsylvania shortly before he filed suit. These refineries are owned and

operated by Alcoa of Australia, Ltd. (“AAL”), which is sixty percent owned by a

subsidiary of the sole defendant, Alcoa, Inc. (“Alcoa”). The District Court granted

Alcoa’s motion to dismiss without prejudice on forum non conveniens grounds. These

appeals followed.

While plaintiffs acknowledge that their exposure, injuries, diagnoses, and medical

treatment all occurred exclusively in Western Australia and that none of the operative

facts material to causation, injuries, diagnoses and treatments occurred in Pennsylvania,

they insist that the “witnesses and documentary evidence necessary for the plaintiffs to

prove liability are located at defendant’s corporate headquarters in Pittsburgh.”

Appellants’ Br. at 2. They contend that the District Court’s dismissal must be overturned

because it ignored the evidence they submitted in support of this proposition. They also

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maintain that the District Court did not “hold the defendant to [its] burden of persuasion

on all elements of the [forum non conveniens] analysis.” Id. at 12.

We conclude that the District Court did not abuse its discretion in concluding that

these matters should go forward in Western Australia and that its thorough opinion

reflects an appropriate supporting analysis. Accordingly, we will affirm the District

Court’s order. Because we write primarily for the parties who are familiar with the

record and the proceedings, we will address only the concerns raised by the plaintiffs.

Plaintiffs acknowledge that the District Court’s opinion addresses the proper

issues to be considered in reaching a decision on the appropriate forum: (1) what degree

of deference is to be given the plaintiffs’ choice of forum, (2) whether there is an

adequate alternative forum, (3) whether a balancing of the private factors weighs in favor

of dismissal, and (4) whether a balancing of public factors weighs in favor of dismissal.

See, e.g., Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43 (3d Cir. 1988). Plaintiffs

challenge the District Court’s treatment of issues (2) through (4), and we will address

each in turn.

1. Adequate Alternative Forum

Plaintiffs initially argue that Alcoa did not prove that Western Australia was an

adequate alternative forum. To the contrary, plaintiffs say, the record reveals that an

Australian forum would not be adequate because it (1) would not provide for pretrial

depositions (a fact which they assert the District Court did not address), (2) it would

prohibit contingent fee arrangements, and (3) it would require any plaintiff who lost to

pay the cost of the defense.

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As the District Court pointed out, Alcoa submitted an affidavit of a qualified

Western Australia attorney which explains that (1) Alcoa is registered to do business and

subject to service of process in Western Australia, (2) the courts of Western Australia

have jurisdiction over cases of this kind and recognize theories of liability for negligence,

reckless conduct, and “damage caused by hazardous activities,” and (3) the applicable

court rules provide inter alia for discovery of documents, interrogatories, and the

compelling of the attendance of witnesses and production of documents at trial by court

ordered subpoenas. App. III at B-1607-1613. There is also evidence that trial witnesses

would be required to provide pretrial statements.

The District Court’s opinion provided in part:

To establish Australia as an available forum, Alcoa

must first show that it is amenable, or that it will agree to

submit, to process in Australia. Alcoa admits, however, that

it is subject to the jurisdiction of the courts of Western

Australia with regard to the consolidated litigations.

Moreover, it appears that Alcoa is subject to process in

Western Australia based upon Australian legal authority.

Notwithstanding Alcoa’s admission and the averments of Mr.

Allanson’s affidavit, this Court shall require that Alcoa

submit to the jurisdiction of the appropriate court as a

condition of the dismissal based upon forum non conveniens.

***

There is no dispute that Australian [sic] recognizes the

tort of negligence as part of its common law. Moreover, the

Court finds Plaintiffs’ arguments regarding the inadequacies

of Australian procedure and remedy to be without merit.

Disparities between the laws of the chosen and alternative

forums, similar to those referenced by Plaintiffs, do not

render the alternate forum inadequate.

***

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Plaintiffs also contend that Australian pretrial

procedure is inadequate because of the unavailability of a

general discovery deposition process. The taking of

depositions from a party, or an expert or lay witness is not

used by courts in Western Australia other than for medical

witnesses, when examining on relatively non-controversial

matters, who are unavailable to attend trial or for plaintiffs

who are dying. All parties though are subjected to the same

restrictions, therefore there is no prejudice. A restriction on

pretrial discovery does not make Australia an inadequate

forum.

Neither the fee-shifting, i.e. loser pays, arrangement in

Australia jurisprudence nor its lack of contingency fee

agreements render Australia inadequate as an alternative

forum. The potential for taxation of attorney’s fees against

the losing party acts as a double-edged sword. Although such

arrangements are a risk to a plaintiff who loses, it nonetheless

provides an avenue for successful plaintiffs to recover their

attorney’s fees. Moreover, the Supreme Court specifically

mentioned fee shifting and contingent fee agreements as

reasons American courts are so attractive to foreign plaintiffs

and why dismissal might be appropriate to prevent further

congestion in the United States courts. See Piper Aircraft Co.

v. Reyno, 454 U.S. [235,] 252 n.18 [1981] (“unlike most

foreign jurisdictions, American courts allow contingent

attorney fees, and do not tax losing parties with their

opponents’ attorney’s fees.”). Other appellate decisions have

viewed the contingent fee argument to be of little significance

in making the forum non conveniens determination. See[,]

e.g.[,] Coakes v. Arabian American Oil Co., 831 F.2d 575

(5th Cir. 1987); Dowling v. Richardson-Merrill, Inc., 727

F.2d 608 (6th Cir. 1984).

App. at A-31-34 (internal citations and footnotes omitted).

As the District Court pointed out, numerous federal courts have found Australia to

be an adequate alternative forum and dismissed on grounds of forum non conveniens.

Some have specifically held that the absence of pretrial depositions does not render an

alternative forum inadequate, see, e.g., In re Carbide Corp. Gas Plant Disaster, 809 F.2d

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195 (2d Cir. 1987), and we have found no case concluding to the contrary. We find no

fault with the District Court’s treatment of this issue. It clearly did not abuse its

discretion.

2. Balance of Private Factors

Plaintiffs urge that the District Court “engaged in a one-sided evaluation” when

assessing the private interest and public interest factors, dismissing “with little or no

discussion factors which favored retaining jurisdiction in the U.S. forum.” Appellants’

Br. at 14. Plaintiffs correctly note that the District Court focused on the difficulties Alcoa

would have in accessing the evidence it would need to defend itself if the cases go

forward in Pennsylvania. They insist that it ignored their evidence that they would have

very limited access to Pittsburgh witnesses and documents if relegated to the pretrial

process in Western Australia. Once again, we believe the District Court did the

appropriate balancing and reached a conclusion well within the scope of its discretion.

After pointing out Alcoa’s need for “access to non-party witnesses regarding the

alleged injuries, medical treatment, prognoses, local climatic anomalies, refinery

operations, and Western Australia environmental and public health regulations,” the

District Court directly addressed plaintiffs’ contention “that there are important witnesses

and/or documents located in Pennsylvania that are critical to establishing liability.” App.

at 35. It found, however, that Pennsylvania evidence from a party would be much more

accessible to plaintiffs for trial in a Western Australian forum than Western Australian

evidence from non-parties would be for Alcoa for trial in a Pennsylvania forum. Because

of this distinction between access to party and non-party witnesses and documents and

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the primary importance of a party’s being able to present its case at trial, the District

Court concluded that this factor weighed heavily in favor of dismissal.

Plaintiffs understandably would prefer to have the pretrial process available in

Pennsylvania. However, we do not understand plaintiffs to challenge the conclusion of

the Court regarding the relative access of the parties to evidence for trial or the primary

importance of access to evidence for trial. While plaintiffs’ brief faults the District Court

for relying on a party/non-party distinction, it does so on the ground that it “overlooks the

fact that the Australian legal system has very different procedural rules related to pretrial

discovery,” Appellants’ Br. at 15 (emphasis added), and the ensuing portion of that

argument in the brief, with one exception,1 is addressed to the disparity in pretrial

discovery regimes. Plaintiffs’ brief does not dispute that Alcoa as a party would be

required to produce documents and witnesses within its control for plaintiffs’ use at trial

in Australia and, indeed, Alcoa’s counsel acknowledged before us that Alcoa shared the

understanding of the District Court with respect to its obligation as a party to produce

relevant witnesses and documents should these matters be tried in Australia.

With respect to balancing the private interests of the parties concerning the

disparity in pretrial discovery rules, the District Court, in addition to finding that the

absence of pretrial depositions did not render Western Australia an inadequate forum,

1

Plaintiffs’ brief does identify one potential, non-party witness who could not be

compelled to testify in an Australian court, Paul O’Neill, a former CEO of Alcoa but no

longer employed by it. They assert that Mr. O’Neill’s “testimony can be important to

plaintiffs’ claims.” Appellants’ Br. at 21. In the absence of some indication as to how

that testimony can be important and of some reason to believe similar testimony is not

available from party witnesses, we cannot fault the District Court for failing to regard the

unavailability of this one witness as of controlling importance.

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understandably concluded that “[a]ll parties . . . are subject[] to the same restrictions [on

pretrial discovery]” and “therefore, there is no prejudice.” App. at A-33. 2

In Dahl v. United Technologies Corp., 632 F.2d 1027 (3d Cir. 1980), we sustained

the dismissal of a Delaware suit in favor of a Norwegian forum in similar circumstances.

3. Balance of Public Factors

Plaintiffs insist that the District Court wrongfully disregarded Pennsylvania’s

“interest in insuring that [its] corporations do not engage in tortuous [sic]conduct which

results in injury to anyone, regardless of whether those individuals reside in a foreign

country or in the U.S.” Appellants’ Br. at 24. Plaintiffs correctly point out that this

Court took note of that interest in Windt v. Qwest Communs. Int’l., Inc., 529 F.3d 183,

193-94 (3d Cir. 2008). We do not agree, however, that the District Court’s opinion

evidences a failure to take that interest into account. The Court was fully aware that

plaintiffs alleged culpable conduct in Pennsylvania and expressly recognized at the outset

of its public interest factor discussion that it “must consider the locus of the alleged

culpable conduct . . . and the connection of that conduct to plaintiff’s chosen forum.”

App. at A-38 (quoting from Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 612

(3d Cir. 1991). The District Court’s conclusion was not that Pennsylvania lacked a

2

Plaintiffs also fault the Court for not considering as a private interest factor the

facts that Australia prohibits contingent fee agreements and has a “loser pay system.” As

earlier noted, the District Court did consider these matters in determining whether

Western Australia was an adequate alternative forum. Our Court has debated whether

various matters should be addressed as relating to the private interest or adequacy of the

alternative forum analysis. See Lacey v. Cessna Aircraft Co., 932 F.2d 170, 190-91 (3d

Cir. 1991). Suffice it to say that the District Court took these matters into account.

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relevant interest, but rather that it had no interests “comparable” to those of Australia.

App. at A-60.

Even if the District Court had failed to take this interest of Pennsylvania into

account, however, it would not alter the outcome of these appeals. Clearly, neither Windt

nor any other case suggests that, where culpable conduct takes place in a mass tort case in

both jurisdictions and injury in only one, the interests of the two are “comparable.” This

issue is not a close call. A public interest balancing analysis which concluded in favor of

Pennsylvania here would be an abuse of discretion. The District Court’s conclusion was

not.

4. Conclusion

The judgment of the District Court will be affirmed.

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