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CAPRI TRADING CORP. v. BANK BUMIPUTRA MALAYSIA BER

February 18, 1993

CAPRI TRADING CORPORATION, Plaintiff,
v.
BANK BUMIPUTRA MALAYSIA BERHAD, NAWAWI MAT AWIN, WONG AUN PHUI, and MUHAMAD RADZI BIN MAHMOOD, Defendants.



The opinion of the court was delivered by: STANLEY A. WEIGEL

 I. BACKGROUND

 Plaintiff Capri Trading Corporation ("Capri") is a Bahamian corporation and the beneficial owner of a minority interest in shares of Carrian Investments Limited ("CIL"), a Hong Kong company. Plaintiff sues Defendants for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq., and pendent claims of fraud and breach of fiduciary duty. The claims arise from an agreement by which CIL sold its United States assets and shares of CIL's subsidiaries to two other companies, Darton Limited ("Darton"), a Liberian corporation, and Dragon Base Company Limited ("Dragon"), a Hong Kong corporation. Capri alleges that the assets were sold for inadequate compensation as part of a conspiratorial scheme to enrich the members of the conspiracy and to diminish the value of shares held by Capri and other minority shareholders. Defendant Bank Bumiputra Malaysia Berhad ("BBMB") is a Malaysian corporation which allegedly participated in the conspiratorial scheme. Defendants Wong Aun Phui ("Wong"), Nawawi Mat Awin ("Nawawi"), and Muhamad Radzi Bin Mahmood ("Muhamad") are residents of Malaysia and officers of BBMB.

 BBMB moves to dismiss the complaint on the grounds of forum non conveniens and Plaintiff's lack of standing. Defendants Wong and Muhamad joined in these motions.

 II. DISCUSSION

 I. Motion to Dismiss for Forum Non Conveniens

 The forum non conveniens determination is "committed to the sound discretion of the trial court." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). A party moving to dismiss an action on the ground of forum non conveniens must show: (1) the existence of an adequate alternative forum; and (2) that the balance of private and public interest factors favors dismissal. Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 767 (9th Cir. 1991); Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1449 (9th Cir. 1990).

 Although there is generally a strong presumption in favor of maintaining the plaintiff's choice of forum, the presumption applies with less force when the plaintiff is foreign. *fn1" Piper Aircraft, 454 U.S. at 255. Accordingly, because Plaintiff is a foreign non-resident corporation, its choice of forum deserves less deference. Id. at 256.

 A. Adequate Alternative Forum

 The threshold requirement of dismissal of an action on the ground of forum non conveniens is the existence of an adequate alternative forum. Lockman, 930 F.2d at 768. This requirement is ordinarily satisfied when the defendant is amenable to process in the other jurisdiction. Piper Aircraft, 454 U.S. at 254 n.22 (citing Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 506-07, 91 L. Ed. 1055, 67 S. Ct. 839 (1947)). In rare circumstances, the alternative forum may not be adequate where the defendant is amenable to process if the remedy offered by the other forum is clearly unsatisfactory. Id. However, the alternative forum need not provide all of the remedies and benefits which might be available in an American court, so long as the remedies provided are not "so clearly inadequate or unsatisfactory that [there] is no remedy at all." Zipfel v. Halliburton Co., 832 F.2d 1477, 1484 (9th Cir. 1987) (citing Piper Aircraft, 454 U.S. at 254).

 In this case, Hong Kong is an adequate alternative forum. Defendant BBMB is amenable to process in Hong Kong because it conducts business in the country. Phillips Forum Decl., P 13. Defendants Wong, Muhamad, and Nawawi have expressly consented to submit to the jurisdiction of the Hong Kong courts if this action is refiled in Hong Kong. See Contact Lumber Co., 918 F.2d at 1450 (court may grant dismissal where defendants submit to jurisdiction in alternative forum).

 Hong Kong law also provides sufficient remedies to redress Plaintiff's alleged injuries. The law of Hong Kong recognizes claims based upon deceit or misrepresentation and also the tort of conspiracy to injure by unlawful means. Phillips Forum Decl., PP 27-28. The law of Hong Kong further makes available the damage remedies sought by Plaintiff. Plaintiff also seeks equitable relief regarding the ownership of the United States assets. It is questionable whether the Hong Kong court will assert jurisdiction to provide relief in respect to real property outside the forum. However, the damage remedies are not "so clearly inadequate or unsatisfactory that [there] is no remedy at all." Piper Aircraft, 454 U.S. at 254.

 For the foregoing reasons, Hong Kong is an adequate alternative forum. The possible unavailability of a RICO claim in Hong Kong does not prevent the Court from ...


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