COL_Hassan EL–FADL, Appellant v. CENTRAL BANK OF JORDAN digest

United States Court of Appeals,District of Columbia Circuit.
Hassan EL–FADL, Appellant v. CENTRAL BANK OF JORDAN, et al., Appellees.
No. 94–7212.
Decided: February 06, 1996

The Central Bank of Jordan removed the case to federal district court pursuant to the Federal Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1441(d) (1994).  Following the removal, the Jordanian defendants filed a motion to dismiss, and PIBC also filed a motion to dismiss and, in the alternative, for summary judgment.   The district court dismissed the complaint as to all defendants.   First, the court ruled that the Central Bank, Governor Mohammed Saeed El–Nabulsi, and Deputy Governor Michel Marto (together, the “sovereign defendants”) were immune from suit under the FSIA.   Second, the court granted Petra Bank’s motion to dismiss for lack of personal jurisdiction under the District of Columbia “doing business” and long-arm statutes found in D.C.Code §§ 13–334, 13–422, and 13–423.   Third, the court granted PIBC’s motion to dismiss on forum non conveniens grounds, although the court had personal jurisdiction, because El–Fadl had an available forum in the Jordanian courts.   The court denied El–Fadl’s motion for reconsideration.

FACTS:

El–Fadl is a Lebanese national who has lived in Jordan since 1982.  Hassan El–Fadl filed suit in the Superior Court of the District of Columbia seeking to recover damages against Petra International Banking Corporation (“PIBC”) for wrongful termination of employment as well as for various tort claims against several Jordanian institutions and officials.

In his complaint, he alleges that he was employed by PIBC, a subsidiary in the District of Columbia of Petra Bank, a privately owned bank in Jordan.   From 1982 to 1989 he was employed by PIBC in Jordan as manager of a regional office for Middle Eastern clients.   He had signed a contract under which he “would be permanently employed for life as a senior manager of Petra International Banking Corporation.”  

The defendants maintain that El–Fadl was employed by Petra Bank (not PIBC) as a senior manager with responsibility for currency and precious metals trading.

In August 1989, the Central Bank of Jordan announced that it had uncovered widespread financial improprieties at Petra Bank and placed Petra Bank in receivership.   Since then, Petra Bank has been run by a Liquidation Committee appointed by the Jordanian government.   The Deputy Governor of the Central Bank, Michel Marto, was appointed to administer the liquidation of PIBC, and Marto came to the District of Columbia for that purpose.   On September 14, 1989, Marto sent El–Fadl a letter in which PIBC terminated El–Fadl’s employment as senior manager of the PIBC office in Amman.

ISSUE:
WON the court is correct in granting PIBC’s motion to dismiss on forum non conveniens grounds?

HELD:
No. Accordingly, we reverse the dismissal of the claims against Petra Bank for lack of personal jurisdiction and remand to allow El–Fadl to conduct discovery of jurisdictional facts;  we also reverse the dismissal of the claims against Petra Bank and PIBC on grounds of forum non conveniens, remanding for a finding whether Petra Bank and PIBC can show that Jordan is an adequate alternative forum.

In deciding a forum non conveniens motion, the district court must first establish that there is an adequate alternative forum:
At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum.   Ordinarily, this requirement will be satisfied when the defendant is “amenable to process” in the other jurisdiction.  

In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied.   Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute.
 “Availability of adequate alternative fora is a threshold test ․ in the sense that a forum non conveniens motion cannot be granted unless the test is fulfilled.”   The defendant bears the burden of proving that there is an adequate alternative forum.  

In this case, PIBC and Petra Bank could not prove on the present record that Jordan was an adequate alternative forum. PIBC submitted an affidavit from a Jordanian attorney, Rami M. Al–Hadidi, who states that “Jordanian courts are open to El–Fadl to adjudicate these claims against the defendants.”   Al–Hadidi also explains that the Jordanian Civil Code recognizes various causes of action that El–Fadl has brought.   Yet PIBC’s expert fails to address various potentially dispositive provisions of Jordanian law that El–Fadl brought to the district court’s attention. –Fadl cited two resolutions regarding Petra Bank.10  Based on the foregoing legal authorities, El–Fadl’s expert, a Jordanian attorney named Ibrahim J. Tukan, states in his affidavit that “[t]he above listed laws, decrees, and statutes constitute an absolute prohibition to Mr. El–Fadl to bring his causes of action in Jordan.”   PIBC’s expert, Al–Hadidi, does not address any of these authorities in his affidavit.
Consequently, if El–Fadl’s expert is correct in describing the legal situation in Jordan, the Jordanian courts would appear to be closed to El–Fadl’s claims against Petra Bank and perhaps even to claims against PIBC.

A foreign forum is not inadequate merely because it has less favorable substantive law, id. at 247–55, 102 S.Ct. at 261–65, because it employs different adjudicative procedures, see, e.g., Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 768 (9th Cir.1991), or because of general allegations of corruption in the judicial system.   See, e.g., Blanco v. Banco Industrial de Venezuela, 997 F.2d 974, 981–82 (2d Cir.1993).   El–Fadl’s repeated reliance on a State Department report expressing “concern about the impartiality” of the Jordanian court system, for example, is unavailing.   But if the foreign forum would deny him access to its judicial system on the claims in his complaint, dismissal on forum non conveniens grounds is inappropriate.  

Our review of the grant of a motion to dismiss for forum non conveniens is for abuse of discretion.

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