Federal District Court Opinions
IRWIN v. WORLD WILDLIFE FUND, INC., (D.C. 2006) NANCY R.
IRWIN AND OLIVIER MISSA, Plaintiffs, v. WORLD WILDLIFE FUND,
INC. Defendant. Civ. No. 05-1287 (EGS). United States
District Court, D. Columbia. August 22, 2006
MEMORANDUM OPINION
EMMET SULLIVAN, District Judge
Plaintiffs, Nancy Irwin and Olivier Missa, filed this
action against defendant, the World Wildlife Fund, Inc.,
alleging breach of contract and negligence in violation of
Gabonese law. Specifically, plaintiffs allege that
defendant is responsible for a boating accident in the
N’dogo Lagoon in Gamba, Gabon, which resulted in serious
injury to Ms. Irwin. Plaintiffs filed their claims in this
Court pursuant to 28 U.S.C. § 1332(a). Ms. Irwin is
a citizen of the United Kingdom, Mr. Missa is a citizen of
Belgium, defendant is a citizen of the United States, and
the amount in controversy exceeds $75,000. Plaintiffs
reside in Aberdeen, Scotland. Defendant’s headquarters and
principal place of business are located in the District of
Columbia.
Pending before the Court is defendant’s motion to dismiss
plaintiffs’ complaint on the ground of forum non
conveniens. Defendant argues that other than the fact that
its headquarters Page 2 is located in the District of
Columbia, there is no nexus between this forum and the
facts of this case: plaintiffs are not citizens of the
United States, all of the events occurred in Gabon, all of
the critical evidence is located in Gabon, the accident was
investigated by Gabonese authorities, Ms. Irwin was
initially treated in Gabon, and the likely responsible party
— the driver of the boat that collided with
plaintiffs’ boat — presumably resides in Gabon.
Plaintiffs respond, primarily, that their choice of forum
is entitled to deference because Ms. Irwin’s precarious
medical condition prevents her from traveling to Gabon
without risking major medical complications or even death.
Plaintiffs also argue that Gabon is not an adequate forum
and that private interest factors weigh in favor of
litigating the case in the District of Columbia.
Upon consideration of defendant’s motion, and the response
and reply thereto, the Court concludes that the District of
Columbia is not the appropriate forum to litigate
plaintiffs’ claims. In addition to consideration of the
relevant legal factors, the Court’s determination is based
upon defendant’s assurances that it will waive any
procedural obstacles in the plaintiffs’ commencement of a
lawsuit against defendant in Gabon, defendant’s motion to
dismiss (Def.’s Mot.) at 7, and its willingness to enter
into an agreement with plaintiffs’ counsel that Ms. Irwin’s
pretrial testimony would take place in Scotland. Page 3
Defendant’s reply at 11. Therefore, defendant’s motion to
dismiss is GRANTED, subject to the above concessions.
I. BACKGROUND
Plaintiff Irwin is a highly-trained zoologist, who, until
the tragic events that give rise to this action, was a
Commonwealth University scholar and doctoral candidate at
the University of Queensland in Brisbane, Australia. Compl.
at § 6. Plaintiff Missa is a tropical ecologist and
is married to Irwin. Id. at 7. In May of 2002, Ms. Irwin
moved from Brisbane to Gamba, Gabon, to be with her
husband, who had recently taken a position as a lab
coordinator for the Smithsonian/EHTM biodiversity program.
Id. Gamba is a town in Gabon located in the “Gamba
Complex,” a large, remote area located in Gabon. While in
Gabon, Ms. Irwin continued research on her doctoral
dissertation. Id.
Plaintiffs allege that in June of 2002, Missa arranged,
through the Gabonese entity Cecotour, for a trip in a small
wooden boat on a lagoon adjacent to Gamba for himself,
Irwin, and two others. Compl. at §§ 8-9.
According to defendant, Cecotour has never been a corporate
affiliate or subsidiary of defendant. Jamar Decl. at
§ 6. Plaintiffs allege that Cecotour’s actions are
attributable to defendant because Mr. Missa booked the trip
with an employee of the World Wildlife Federation’s Gabon
office and was instructed to make payment there. Compl. at
§ 9. Page 4 Defendant claims that it does not
employ any person mentioned in the complaint. Jamar Decl.
at § 7.
Plaintiffs were scheduled to go on a boat trip at 6:30 p.m.
on June 28, 2002, but the trip was delayed until 8:20 p.m.
— after nightfall. Compl. at §§ 9, 11.
According to the police report obtained by defendant, at
approximately 9:00 p.m., a second boat, piloted by Igor
Bipakila and owned by Jean-Martin Rebellah (“Rebellah”),
collided with the left side of plaintiffs’ boat, which was
piloted by a Gabonese citizen, Jean-Flavien Tchibinda.
Jamar Decl. at § 10.
The bow of the oncoming boat struck Ms. Irwin in the face,
dislodging her orbital ridge and shattering her face. Compl.
at § 12. In addition, the bow of the oncoming boat
hit metal supports in the boat Ms. Irwin occupied, and the
metal supports impaled Ms. Irwin’s skull and tattooed her
skin. Id. Ms. Irwin also suffered additional injuries to
her skull, shoulder, neck and spine. Id. Ms. Irwin’s
injuries are long-term, severe, painful, and extensive, and
they include: loss of sensation and motor function,
complete loss of smell and a diminished sense of taste,
diminished cognitive skills, short-term and working memory
loss, shattered sinuses, which cause complications with
common infections, and diminished ability to perceive
visual depth. Compl. at § 18. Plaintiff Missa also
suffered damages as a result of the accident, including the
expenses incurred as a Page 5 result of Irwin’s injuries.
Id. at § 23.
Plaintiffs allege that the boat was not adequately prepared
for the emergency because it lacked navigational lighting,
and its passengers were not offered or told to wear life
jackets, in violation of Gabonese law. Compl. at §
11. Plaintiffs also allege that the boat did not have any
form of communication, such as a functioning radio, and
that the boat operator lacked adequate training in first
aid and emergency planning. Id.
Plaintiffs seek an award of compensatory and punitive
damages against the defendant.
III. DISCUSSION
When considering a motion to dismiss on the ground of forum
non conveniens, the Court must first determine whether the
proposed alternative forum is adequate. Gulf Oil Corp. v.
Gilbert, 330 U.S. 501, 506-07 (1947); Pain v. United
Technologies Corp., 637 F.2d 775, 784 (D.C. Cir. 1980). If
there is an adequate alternative forum, the Court must
balance the private interests of the litigants in keeping
the case in the District of Columbia or dismissing it in
favor of the foreign court, and the interests of the public
and the courts of this district in keeping the case here.
See Gilbert, 330 U.S. at 508-09; Dowling v.
Richardson-Merrell, Inc., 727 F.2d 608, 612 (6th Cir. 1984).
A. Because plaintiff is neither a citizen nor resident of
the United States, plaintiffs’ choice of forum is entitled
to less deference Page 6
Plaintiffs’ primary argument against dismissal is that Ms.
Irwin’s choice of forum, driven by her present medical
condition, should be accorded deference. Although there is
a strong presumption in favor of the plaintiff’s choice of
forum, plaintiff’s choice is entitled to less deference if
she is a citizen and resident of a foreign state. Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981); BPA
Int’l, Inc. v. Sweden, 281 F. Supp. 2d 73, 85 (D.D.C. 2003)
(“While a plaintiff’s choice of forum is usually given a
strong presumption, this factor carries much less weight
when the plaintiff is also a stranger to the forum.”).
Plaintiff Irwin argues that if she were required to return
to Gabon, she would be at serious risk of medical
complications, and even death. Gabon does not have adequate
medical care for even her routine conditions, much less the
expertise and equipment needed to respond to any unexpected
complications that could arise. If the case were tried in
Washington, on the other hand, Ms. Irwin could be treated
at one of several area hospitals. In addition, Ms. Irwin
has family members living in Northern Virginia who could
host and care for her during deposition and trial.
The risks to Ms. Irwin’s health are of serious concern to
the Court. Nevertheless, defendant has indicated a
willingness to accommodate Ms. Irwin as much as possible.
Defendant has Page 7 agreed to take Ms. Irwin’s pretrial
testimony in Scotland. Defendant’s reply at 11. Mr. Missa,
Ms. Irwin’s husband and co-plaintiff, will presumably be
available to attend pretrial proceedings in Gabon. Ms.
Irwin’s remaining interest in attending trial, though
significant, is insufficient to prevent dismissal from this
Court. The right to attend trial, even for American
citizens, is not absolute. See, e.g., Effron v. Sun Line
Cruises, 67 F.3d 7, 11 (2d Cir. 1995) (holding that an
American plaintiff was bound by a forum selection clause
that designated Greece as the proper forum in a cruise
contract dispute; “[t]he right to a day in court means not
the actual presentation of the case, but the right to be
duly cited to appear and be afforded an opportunity to be
heard.”) (internal quotations omitted). Thus, although Ms.
Irwin’s interest in attending trial is a significant
consideration, that reason alone is insufficient to persuade
the Court that this case is best litigated in the District
of Columbia.
B. The courts of the Republic of Gabon are an adequate
alternative forum
In determining the suitability of an alternative forum,
the Court must determine whether an alternative forum is
available (i.e., whether defendants are amenable to process
or otherwise within the forum’s jurisdiction) and whether
the forum is adequate (i.e., whether the parties will be
deprived of all remedies or treated unfairly). Piper
Aircraft v. Reyno,
Page 8 454 U.S. 235, 254 (1981).
As noted above, defendant has conceded that it would waive
any procedural obstacles that would prevent plaintiffs’
commencement of a lawsuit against it in Gabon. Defendant’s
motion at 7. In addition, although no federal or state
court has directly addressed the issue of whether the
Republic of Gabon is an adequate forum, it appears that
Gabon’s legal system satisfies the standards applied by
courts in analyzing the adequacy of similar foreign forums.
As long as the alternative forum meets the threshold
standard of adequacy, perceived differences in the
substantive law or the comparative amount of recovery
obtainable in the two alternative forums are not relevant.
Piper, 454 U.S. at 248-49; Pain, 637 F.2d at 794; Empresa
Lineas Maritimas Argentinas, S.A. v. Schichau-Unterweser,
A.G., 955 F.2d 368, 372 (5th Cir. 1992). In this case, the
Gabonese legal system would allow plaintiffs to maintain an
action against defendant to recover for injuries caused by
defendant, Gabonese law recognizes claims that are similar
or comparable to the claims in the complaint, and these
type of claims are routinely heard in Gabon. Decl. Of
Josette Olendo at § 5-6.
Plaintiffs’ only challenge to the adequacy of the forum in
Gabon is based upon a report by the United States Department
of State, which said that “the judiciary remained subject
to government influence” and that the Gabonese legal system
is Page 9 “slow, inefficient and subject to corruption.”
U.S. State Department, Bureau of Democracy, Human Rights
and Labor, Supporting Human Rights and Democracy: The U.S.
Record 2004-2005 (March 28, 2005). As plaintiffs
acknowledge, however, generalized allegations of corruption
do not establish that a foreign forum is inadequate.
El-Fadl v. Centr. Bank of Jordan, 75 F.3d 668, 678 (D.C.
Cir. 1996).
Plaintiffs attempt to distinguish the El-Fadl case on the
grounds that the evidence of corruption in Gabon is much
more specific and of far greater concern. The Court
disagrees. Even if the State Department report is correct,
plaintiff does not provide any specific fact that the
report’s findings would affect this case. This case is not
a criminal case, nor are any political challenges raised
against the government of Gabon. Plaintiffs have not
alleged that they would be treated differently because of
their political affiliations, nor is there any allegation
that the defendant, a non-profit corporation, can or would
exert influence over civil proceedings in Gabon. In sum,
plaintiffs allegations are exactly the type of generalized
allegations insufficient to dispute the adequacy of an
alternative forum.
C. The private interest factors weigh in favor of dismissal
If a alternative adequate forum is available, the Court
must next balance private interest factors to determine if
“trial in Page 10 the chosen forum would be unnecessarily
burdensome for the defendant or the court.” Piper, 454 U.S.
at 256, n. 23. If so, dismissal is proper. Id. Private
interest factors are: (1) the relative ease of access to
sources of proof; (2) the availability of process for
compelling unwilling witnesses; (3) the cost for obtaining
attendance of willing witnesses; (4) the possibility of
inspecting the premises, if appropriate; and (5) all other
practical problems that make trial of a case easy,
expeditious, and inexpensive. Gilbert, 330 U.S. at 508.
These factors weigh in favor of dismissal. The breach of
contract and negligence claims are predicated solely upon
conduct in Gabon. Two potentially responsible parties are
located in Gabon: the pilot and owner of the boat which
struck plaintiffs’ boat. According to the local police
report, “[t]he responsibilities for this accident seem to
fall on Igor Bipakila, pilot of the boat of Mr. Jean Martin
Rebellah, for inattention and not observing the rules and
spirit of maritime navigation code.” Jamar Decl. at
§ 10.
In addition, there are no witnesses located in the United
States who have knowledge of the events surrounding the
accident. Defendant argues that the only conceivable
witnesses in the United States are perhaps certain World
Wildlife Fund — US employees who could testify to
their employer’s relationship with World Wildlife
Fund-Gabon or World Wildlife Fund-International. Page 11
The availability of process for unwilling witnesses is also
a primary concern to the Court. See Gilbert, 330 U.S. at
511 (“To fix the place of trial at a point where litigants
cannot compel personal attendance and may be forced to try
their cases on deposition, is to create a condition not
satisfactory to the court, jury, or most litigants.”). The
pilot and owner of the boat that struck plaintiffs’ boat,
the pilot of plaintiffs’ boat, the passengers on both
boats, the police and other local investigators, the
medical personnel at Shell Gabon and in Port Gentil who
treated plaintiff, and any passing motorists who witnessed
the aftermath of the accident are likely located in Gabon.
At the very least, there is no evidence that any of these
potential witnesses reside in the United States. None of
these individuals are subject to subpoena power of this or
any other United States court, and none can be compelled to
attend trial. See BPA Int’l, Inc. v. Kingdom of Sweden,
281 F. Supp. 2d at 73, 86 (D.D.C. 2003) (“Because
[plaintiff’s] claims arose out of actions occurring in
Sweden, access to sources of proof would be much easier if
the case were heard in Sweden rather than Washington, D.C.
Many, if not most, of the potential witnesses and much of
the evidence will likely be located in Sweden and therefore
will likely be beyond the reach of the Court’s compulsory
process.”).
Even if they were willing to attend trial, the cost of
Page 12 bringing witnesses to Washington, D.C. would be
significant. As defendant points out, expert witnesses
competent to testify at trial about Gabonese law or
prevailing standards applicable to the plaintiffs’
negligence and breach of contract claims are probably
located in Gabon.
Defendant also argues that viewing the scene of the boat
accident in Gabon is a key component of this case. The
placement of the boats at the time of the accident, the
width of the water passage at the location of the accident,
and rocks or other impairments to visibility are important
factors in the determination of liability.
In response, plaintiffs attempt to demonstrate that there
is no need to litigate the case in Gabon because
substantial evidence has already been discovered and any
further necessary evidence would not be located in Gabon.
At such an early stage in this litigation, the Court cannot
make the determinations plaintiffs presume.
Thus, an analysis of all of the relevant private interest
factors clearly indicates that Gabon is the appropriate
forum to litigate this case.
D. The public interest factors weigh in favor of dismissal
The public interest factors to be considered in a forum
non conveniens analysis include: (1) administrative
difficulties caused by foreign litigation congesting local
court dockets; (2) Page 13 local interest in having
localized controversies decided at home; (3) imposing jury
duty on residents of a jurisdiction having little relation
to the case; and (4) avoiding unnecessary problems in
choice-of-law and the application of foreign law. See
Gilbert, 330 U.S. at 508-09.
Like the public interest factors, the private interest
factors clearly favor dismissal. The administrative
difficulties of trying this case “in a forum thousands of
miles away from the majority of witnesses and the evidence
are obvious.” Gonzalez v. Naviera Neptuno A.A., 832 F.2d
876, 879 (5th Cir. 1987). As French is the national
language of Gabon and the language of the legal system, it
is likely that many of the witnesses and much of the
evidence would need to be translated from French. Thus, the
administrative difficulties of trying the case in the
District of Columbia weigh in favor of dismissal.
Regarding the second factor, the Republic of Gabon clearly
has the stronger interest in this controversy. The accident
took place there, Gabonese authorities investigated it,
Gabonese laws may be implicated, and plaintiff Irwin was
treated in two Gabonese medical facilities. As defendant
notes, this case is essentially a two vehicle tort case,
the epitome of a “localized controversy.” Gabon has a
stronger interest in deterring any conduct deemed to have
caused the accident, such as the alleged failure to equip
the boat with navigational lighting and the Page 14
failure to require passengers to wear life jackets. In
addition, plaintiff fails to identify a reason to impose
jury duty on District of Columbia residents who have little
relationship to this case. In sum, Gabon’s interest in the
case far surpasses the interest of the District of
Columbia.
Finally, litigating this case in the District of Columbia
would result in substantial choice-of-law problems. Many of
the legal questions require interpretation of Gabonese law,
and Gabon is in the best position to interpret and apply
its own law.
Plaintiff responds that there is a public interest in
holding corporations responsible here for violations of
laws abroad. Plaintiff also identifies some connections
that the litigants share with the District of Columbia. For
example, the boat was allegedly owned and operated by a
corporation that is headquartered here and which may have
relevant documents here. Finally, plaintiff argues that the
Court’s potential application of Gabonese law is not
sufficient reason alone to dismiss the case.
The Court does not deny that there may be a de minimus
connection between this case and the District of Columbia.
Moreover, if any of the public or private factors identified
by the Court, such as the Court’s application of Gabonese
law, were the sole reason in support of dismissal, then
dismissal would likely be inappropriate. See Piper, 454
U.S. at 260, n. 29 (“Of Page 15 course, [the need to apply
foreign law] alone is not sufficient to warrant dismissal
when a balancing of all relevant factors shows that the
plaintiff’s chosen forum is appropriate”). The balance of
public and private factors in this case, however, and the
fact that plaintiff is neither a resident nor a citizen of
the United States, persuade the Court that the most
appropriate forum for this case is Gabon.
IV. CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss
is GRANTED, subject to defendant’s assurances that it will
waive any procedural obstacles in the plaintiffs’ bringing
of a lawsuit against defendant in Gabon and that it will
arrange for plaintiffs’ pretrial testimony to take place in
Scotland. Page 1