U.S. Court of Appeals for the Ninth Circuit, Global Commodities Trading Group, Inc. v. Beneficio De Arroz Choloma, S.A., a Honduran Company, Docket No. 18-16026

 

Jurisdiction

 

Personal Jurisdiction

 

Specific Jurisdiction Over Employees

 

Forum Non Conveniens

 

Import

 

Incoterms

 

CIF Contracts

 

California Law

 

 

The panel reversed the district court’s order dismissing for lack of personal jurisdiction, vacated its orders on the parties’ remaining motions, and remanded with instructions to deny the forum non conveniens motion in an action brought by Global Commodities Trading Group, Inc. (“Global”), a California corporation, against Beneficio De Arroz Choloma, S.A. (“Bachosa”), a Honduran corporation, and two of its officers to recover losses on contracts.

 

Global is a California corporation with its headquarters in Placer County, California. At the time of the events giving rise to this action, it was engaged in the business of international sales of agricultural commodities. Bachosa is a corporation organized under the laws of Honduras with its principal place of business in Choloma, Cortés, Honduras. It is engaged in the business of importing and processing rice and corn from countries including the United States. Bachosa has no offices, real property, or employees in California.

 

From 2008 through 2012, Bachosa purchased approximately 137,450 metric tons of agricultural commodities from Global for more than $50 million pursuant to hundreds of separately negotiated contracts. The contracts generally were cost, insurance, freight (“CIF”) contracts, meaning Global’s contractual performance was considered complete when the goods were loaded at the point of shipment. Global and Bachosa primarily negotiated their contracts by phone and email.

 

(…) Following the alleged January meeting in California, Global arranged for shipment under the contracts. The United States Department of Agriculture issued an inspection certificate for the rice and corn in Woodland, California. The goods were shipped from the United States from Port of Darrow, Louisiana to Puerto Cortes, Honduras on the MV UBC Sacramento on January 19, 2012.

 

(…) See, e.g., Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 2008) (holding that a single eBay sale to a California resident did not give rise to personal jurisdiction there).

 

Specific jurisdiction over Andonie and Jarufe presents a different question: when may a court exercise jurisdiction over individuals based on their contacts with a forum on behalf of a corporation?

 

We noted that the Supreme Court had allowed the exercise of specific jurisdiction over employees based on actions they took on behalf of a corporation. See, e.g., Calder v. Jones, 465 U.S. 783, 790 (1984) (“their status as employees does not somehow insulate them from jurisdiction”); Keeton, 465 U.S. at 781 n.13. As a matter of Arizona law, we held that the state’s long-arm statute allowed the exercise of personal jurisdiction to the limits of the federal Constitution, and therefore did not shield corporate officers from jurisdiction over their persons based on actions within the scope of their employment. Davis, 885 F.2d at 522.

 

California’s long-arm statute, like Arizona’s, imposes no limitations on personal jurisdiction beyond those required by due process. See Picot, 780 F.3d at 1211.

 

Although their status as officers of Bachosa does not foreclose personal jurisdiction over Andonie and Jarufe, their status also does not guarantee it. Personal jurisdiction over an individual who acts as an agent of a third party must be assessed on the individual’s actions alone.

 

(…) Our statement in Forsythe that “a corporate officer who has contact with a forum only with regard to the performance of his official duties is not subject to personal jurisdiction in that forum,” Forsythe, 576 F.2d at 783–84, is clearly irreconcilable with the Supreme Court’s decisions subjecting corporate employees to suit in exactly those circumstances. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc); see also Davis, 885 F.2d at 521 (rejecting the fiduciary shield doctrine based on Calder and Keeton). However, our holding in Forsythe that a personal guaranty of a corporation’s debt may give rise to personal jurisdiction over a corporate officer remains good law.

 

We decide questions of forum non conveniens as a matter of federal law even in cases where state or foreign substantive law governs. Ravelo Monegro v. Rosa, 211 F.3d 509 (9th Cir. 2000). “To prevail on a motion to dismiss based upon forum non conveniens, a defendant bears the burden of demonstrating an adequate alternative forum, and that the balance of private and public interest factors favors dismissal.” Ranza, 793 F.3d at 1076 (quoting Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011)). “Forum non conveniens is an exceptional tool to be employed sparingly . . . .” Ravelo Monegro, 211 F.3d at 514. To succeed, a defendant must make “a clear showing of facts which . . . establish such oppression and vexation of a defendant as to be out of proportion to plaintiff’s convenience.” Id. (alteration in original) (quoting Cheng v. Boeing Co., 708 F.2d 1406, 1410 (9th Cir. 1983)).

 

We hold that the balance of private and public interest factors does not favor dismissal. Both sides identify witnesses for whom appearance in their home country would be more convenient. Most of the key documentary evidence, although originally in Spanish, has already been translated into English. The defendants contend that evidence related to Honduran importation permits and the demurrage charges incurred by the Sacramento would be more easily accessible in Honduras. However, evidence related to the negotiations in California would be more easily accessible in California. That some witnesses would prefer to appear in Honduras falls well short of a clear showing of facts which establish such oppression and vexation of a defendant as to be out of proportion to plaintiff’s convenience. Ravelo Monegro, 211 F.3d at 514. Moreover, Global submitted evidence of significant safety concerns with travel to Honduras, particularly for those who travel to the country for the purpose of collecting debt owed by Honduran companies.

 

A plaintiff’s choice of forum—particularly a plaintiff’s “home forum”—is entitled to considerable deference. Ranza, 793 F.3d at 1076 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981)); see also Ravelo Monegro, 211 F.3d at 512 (noting that dismissal for forum non conveniens is typically only appropriate where a plaintiff chooses a forum wholly unrelated to the dispute). This case presents no more than the ordinary burdens any foreign defendant will bear when called to defend an action in the United States against a domestic plaintiff. Those burdens are insufficient to overcome the presumption in favor of Global’s choice of its home forum.

 

The panel held that the district court had specific personal jurisdiction over the corporate defendant.

 

 

(U.S. Court of Appeals for the Ninth Circuit, August 26, 2020, Global Commodities Trading Group, Inc. v. Beneficio De Arroz Choloma, S.A., a Honduran Company, Docket No. 18-16026, For Publication)