Case 2:12-cv-01325-MJP Document 61 Filed 07/29/13 Page 1 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendants. 15 16 17 18 related materials, GRANTS the motion and DISMISSES this case under the doctrine of forum 19 non conveniens. 20 Background 21 22 23 controlling person liability, defamation, breach of fiduciary duty, and tortuous breach of implied 24
ORDER GRANTING DEFENDANTS MOTION TO DISMISS- 1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE TRESORO MINING CORPORATION, Plaintiff, v. RAHIM JIVRAJ, JANE DOE JIVRAJ, MERCER GOLD CORPORATION CASE NO. C12-1325 MJP ORDER GRANTING DEFENDANTS MOTION TO DISMISS

THIS COURT, having considered Defendants motion to dismiss, or in the alternative, stay (Dkt. No. 54), Plaintiffs response (Dkt. No. 57), Defendants reply (Dkt. No. 59), and all

Plaintiff Tresoro Mining Corporation (Tresoro) sues Defendants Mercer Gold Corporation (Mercer), Rahim Jivraj (Jivraj), and Jane Doe Jivraj for federal securities fraud,

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1 covenant of good faith and fair dealing. (Dkt. No. 1 at 5-9.) Jivraj is the sole officer, director, 2 and shareholder of Mercer. (Id. at 1.) The dispute originated in Canada over an option contract 3 negotiated and signed in Canada. There are currently five pending cases in Canada involving 4 the same issues presented in this case. (Dkt. No. 54 at 4.) 5 Plaintiff is an American company, incorporated in Nevada, and Defendant Mercer is a

6 Canadian company, incorporated in British Columbia (BC). (Dkt. No. 1 at 2.) Plaintiff is 7 incorporated in Nevada and has been headquartered in Vancouver, BC for some time. (Dkt. 8 No. 45 at 9.) Mercer is located in Vancouver, BC and has never done business in the U.S. (Dkt. 9 No. 54 at 2.) 10 The Parties entered into a contract containing a choice of laws clause. (Dkt. No. 33 at 6.)

11 Plaintiff and Defendants chose Canadian law to govern disputes, and all Parties are located in 12 Canada. (Dkt. No. 54 at 2.) Plaintiff argues Defendants cannot enforce the choice of laws clause 13 when Defendants have not complied with other parts of the contract. (Dkt. No. 33 at 5.) The 14 option contract that is the subject of the underlying dispute involves a mining operation in the 15 Municipality of Marmato, Colombia. (Dkt. No. 1 at 2.) 16 17 Analysis Defendants argue this case should be dismissed under the doctrine of forum non

18 conveniens. The forum non conveniens determination is committed to the sound discretion of 19 the trial court. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). A party moving to 20 dismiss based on forum non conveniens bears the burden of showing (1) that there is an adequate 21 alternative forum, and (2) that the balance of private and public interest factors favors dismissal. 22 Dole Food Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002) (citing Lueck v. Sundstrand Corp., 23 236 F.3d 1137, 1142-43 (9th Cir. 2001)). Here, all factors favor dismissal. 24
ORDER GRANTING DEFENDANTS MOTION TO DISMISS- 2

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1 2

I.

Canada provides an adequate alternative forum The first requirement for a forum non conveniens dismissal is that an adequate

3 alternative forum is available to the plaintiff. The Supreme Court has held that an alternative 4 forum ordinarily exists when the defendant is amenable to service of process in the foreign 5 forum. Lueck, 236 F.3d at 1143. A foreign forum must provide Plaintiff with some remedy in 6 order to be adequate for forum non conveniens. Defendants bear the burden of showing the 7 existence of an adequate alternative forum. Cheng v. Boeing Co., 708 F.2d 1406, 14011 (9th 8 Cir. 1983). However, it is only in rare circumstances ... where the remedy provided by the 9 alternative forum ... is so clearly inadequate or unsatisfactory, that it is no remedy at all, that this 10 requirement is not met. Lueck, 236 F.3d at 1143. 11 In Piper Aircraft Co., the Supreme Court dismissed a case under forum non conveniens,

12 despite the unavailability of some claims in the alternative forum and the fact the plaintiffs 13 would likely recover much less in damages. Piper Aircraft Co., 454 U.S. at 255. 14 The unavailability of the 1934 Act in Canada is of no consequence. As Piper Aircraft Co.

15 illustrates, the fact Tresoro would not be able to recover as much or use the exact claims 16 available in this Court does not weigh against a forum non conveniens dismissal as long as 17 Tresoro could recover in the foreign forum. Tresoro does not deny it is amenable to service of 18 process in the foreign forum, and it has used the Canadian forum to sue Defendants. (Dkt. No. 1 19 at 5.) 20 Defendants have the burden of showing Canadian courts are an adequate alternative

21 forum. Plaintiff has already had some success in BC: BC arbitratorsruled against [Mercer 22 Gold] on the issue of termination of the Option Agreement. (Dkt. No. 45 at 3.) Defendants 23 show only arbitration is halted, while other cases in Canada remain active: Tresoro has elected 24
ORDER GRANTING DEFENDANTS MOTION TO DISMISS- 3

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1 to pursue independent Canadian cases instead of merely relying on the stalled arbitration. (Dkt. 2 No. 57 at 9, Dkt. No 59 at 6.) Defendants show Tresoro has repeatedly invoked the jurisdiction 3 of the Canadian courts. (Dkt. No. 59 at 6.) Plaintiff can avoid stalled arbitration and avoid 4 incurring more fees for both Parties in this Court by paying Defendants arbitration fee. (Id.) 5 The Parties will spend a significant amount of money in this Court if they are able to proceed. 6 Defendants have shown litigation here would be duplicitous and not cost effective. (Dkt. No. 54 7 at 5.) 8 9 II. Balance of private and public interest factors favor dismissal Plaintiffs choice of forum will not be disturbed unless private and public factors weigh

10 heavily in favor of a foreign forum. Contact Lumber Co. v. P.T. Moges Shipping Co. Ltd., 918 11 F.2d 1446, 1451 (9th Cir. 1990). Both private and public factors point to a dismissal of this case. 12 Private interest factors include: ease of access to sources of proof; compulsory process

13 to obtain the attendance of hostile witnesses, and the cost of transporting friendly witnesses; and 14 other problems that interfere with an expeditious trial. Id. at 1451. Public interest factors 15 encompass court congestion, the local interest in resolving the controversy, and the preference 16 for having a forum apply a law with which it is familiar. Id. at 1452. 17 Private factors weigh in favor of dismissal. While BC is relatively close geographically

18 and the cost of transporting witnesses and sources of proof would not be outrageous, it would be 19 much less expensive for the witnesses to stay in BC and attend any trials or hearings there. Any 20 money spent on transportation to this District would be wasted when Canada provides an 21 adequate forum. Continuing with the litigation in BC would be more expeditious because that 22 litigation is already pending. 23 24
ORDER GRANTING DEFENDANTS MOTION TO DISMISS- 4

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Public factors also weigh in favor of dismissal. The Parties have no connection to

2 Washington, and Washington has no local interest in resolving the controversy. The Parties 3 selected Canadian courts to resolve disputes through the choice of laws clause. (Dkt. No. 33 at 4 6.) Regardless of enforceability of the contract, it is clear Canadian law was intended to govern 5 the dealings between the Parties. Canadian courts are best equipped to apply Canadian law. 6 7 Conclusion The Court GRANTS Defendants motion to dismiss under the doctrine of forum non

8 conveniens. All Parties are located in Canada, the option contract was negotiated and signed in 9 Canada, and the witnesses are located in Canada. These issues are already being litigated in 10 Canada. Canada is the proper forum for this case and this case is DISMISSED. 11 12 13 14 15 16 17 18 19 20 21 22 23 24
ORDER GRANTING DEFENDANTS MOTION TO DISMISS- 5

The clerk is ordered to provide copies of this order to all counsel. Dated this 29th day of July, 2013.

Marsha J. Pechman Chief United States District Judge