Maria Arlete Vaz Borralho, et al., Plaintiffs-appellants, v. Keydril Company, Key International Drilling Company, Ltd.and Key Perfuracoes Maritimas, Ltda., Defendants-appellees, 696 F.2d 379 (5th Cir. 1983)

This is an appeal from a judgment dismissing a wrongful death action brought by the appellants under the Jones Act, 46 U.S.C. § 688, and the general maritime law of the United States, and alternatively under the Death on High Seas Act, 46 U.S.C. § 761, and the Texas Wrongful Death Statute, Tex.Rev.Civ.Stat.Ann. art. 4671. Appellants are the survivors of a Brazilian seaman who died as a result of injuries sustained on board a submersible drilling rig, the KEY WEST, located off the Brazilian coast. The district court dismissed appellants' action against appellees on the ground of forum non conveniens. The primary question is whether the fact that American-based corporations owned the business entities which employed the decedent and owned the drilling rig upon which he was injured constitutes a substantial contact with the United States warranting the application of American law to appellants' lawsuit. We hold that, in the context of this case, the contacts with the United States are insubstantial when compared with those to Brazil, and that the district court, in dismissing appellants' action, did not abuse its discretion. However, because the order of dismissal was made unconditionally, we reverse and remand the case so that the district court may adequately protect the appellants' interests by fashioning an order of dismissal based upon appropriate conditions.

FACTS

The KEY WEST was built in the United States in 1974. Ever since its construction, the KEY WEST has been stationed off the coast of Brazil, first at Belem and then, sometime after the incident in suit, at Fortaleza, drilling for petroleum products for the Brazilian national oil company, Petrobas, under a charter agreement between Petrobas and the owner of the KEY WEST, appellee Key International Drilling Company, Ltd. ("KIDC"). KIDC is a Bermudian corporation whose shares are ultimately owned by Gulf Oil Corporation ("Gulf"). Although owned by a Bermudian corporation, the KEY WEST is registered in Liberia and flies the Liberian flag.

KIDC and appellee Keydril Company ("Keydril"), a Delaware corporation, whose shares are also owned by Gulf, owned appellee Key Perfuracoes Maritimas, Ltda. ("KPM"), a Brazilian limited liability business entity, which was formed at Petrobas's insistence and was under contract to it to drill for petroleum products, using the KEY WEST as the drilling rig. KIDC guaranteed KPM's performance under this contract.

On February 18, 1974, the decedent, Prisco Da Silva Borralho ("Borralho"), a resident and citizen of Brazil, entered into a contract with KPM in Belem, Brazil, which obligated him to work as its employee on board the KEY WEST. This contract, which was written in Portuguese, provided, among other things, that Belem would be the forum for "all questions derived or resulting from" the contract. On or about March 1, 1977, Borralho injured his leg on board the KEY WEST. He was taken ashore for treatment and died in a Brazilian hospital two days later from an embolism.

Appellants,¹  who are all Brazilian citizens and residents of Para, Brazil, filed suit against Keydril, KIDC, and KPM in the federal district court for the Southern District of Texas for damages arising out of Borralho's injuries and death under the Jones Act and the general maritime law of the United States, and alternatively under the Death on the High Seas Act and "the Wrongful Death Statutes of the State of Texas."²  Appellants, however, asserted no claim under Brazilian law.

Appellees responded to appellants' complaint by interposing various defenses under Fed. R. Civ. P. 12(b)³  in their answers, and afterwards, together they filed a motion to dismiss the complaint based on the doctrine of forum non conveniens. In support of their motion, appellees filed the affidavit of Virgil Stone, the President of Keydril and KIDC, whose deposition was later taken by appellants and filed with the district court.⁴  Stone's testimony revealed that KPM was not qualified to do business in the United States; that neither KPM nor KIDC derived any income from operations conducted in the United States; and that KPM had "shoreside managerial people" in Brazil "who direct [ed] the operation of" the KEY WEST.⁵ 

After considering the choice of law factors of Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254 (1952) and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S. Ct. 1731, 26 L. Ed. 2d 252 (1970), the district court decided that American law did not apply to the appellants' lawsuit. The court then considered the forum non conveniens factors of Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 506-507, 67 S. Ct. 839, 842, 91 L. Ed. 1055 (1947), and dismissed the case without prejudice. The order of dismissal was made unconditionally.

STANDARD OF REVIEW

Before a district court dismisses a case based on the doctrine of forum non conveniens, it should first ascertain whether American or foreign law governs the lawsuit.⁶  If American law applies, then the district court should normally retain jurisdiction and proceed with the case. If, however, foreign law does apply and the foreign forum is accessible, then the district court should determine in which forum the case should be tried, and if it decides that the lawsuit should be tried in the foreign forum, then the court should decline to exercise jurisdiction over the case. Fisher v. Agios Nicolaos V, 628 F.2d 308, 315 (5th Cir. 1980), cert. denied, sub nom, Valmas Brothers Shipping, S.A. v. Fisher, 454 U.S. 816, 102 S. Ct. 92, 70 L. Ed. 2d 84 (1981).

While the choice of law determination is generally subject to our de novo review, Phillips v. Amoco Trinidad Oil Company, 632 F.2d 82, 84 (9th Cir. 1980), cert. denied, sub nom, Romilly v. Amoco Trinidad Oil Company, 451 U.S. 920, 101 S. Ct. 1999, 68 L. Ed. 2d 312 (1981), "the forum non conveniens determination is committed to the sound discretion of the trial court." Piper Aircraft Company v. Reyno, 454 U.S. 235, 257, 102 S. Ct. 252, 266, 70 L. Ed. 2d 419, 436 (1981). We may reverse a district court's decision on a motion to dismiss based on forum non conveniens only if its action constitutes a clear abuse of discretion. Chiazor v. Transworld Drilling Company, Ltd., 648 F.2d 1015, 1017-1018 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S. Ct. 1714, 72 L. Ed. 2d 136 (1982).

" [W]here by application of the Lauritzen factors the correct choice of law decision is to apply foreign law (and a foreign forum is accessible), a district court's discretion in granting a forum non conveniens dismissal will not ordinarily be disturbed on review." Fisher, 638 F.2d at 315.

CHOICE OF LAW

Appellants' first contention is that there were disputed material issues of fact respecting the choice of law determination that should have been reserved for trial on the merits and referred to a jury for determination and not decided by the district court.⁷  They argue that under Fed. R. Civ. P. 12(b) (6), the appellees' motion to dismiss must be treated as a motion for summary judgment under Fed. R. Civ. P. 56, and as such, all factual questions must be resolved in their favor.

An objection based on the doctrine of forum non conveniens is not governed by Rule 12. The objection is not based on improper venue, which must be asserted by preliminary motion or answer. "The doctrine does not come into play unless the court in which the action is brought has both subject matter and personal jurisdiction and is proper venue." 12 Wright & Miller, Federal Practice & Procedure: Civil, Sec. 3288; Gulf, 330 U.S. at 507, 67 S. Ct. at 842. As stated by the Third Circuit in Dahl v. United Technologies Corp., 632 F.2d 1027, 1029 (3d Cir. 1980):

"The principle of forum non conveniens permits a court to decline jurisdiction even though venue and jurisdiction are proper, on the theory that for the convenience of the litigants and the witnesses, the action should be tried in another judicial forum."

The question raised by appellants' contention concerns the manner in which the factual issues raised in connection with forum non conveniens are resolved. For the reasons below, we think that the answer to this question is found in the cases which deal with motions to transfer under 28 U.S.C. § 1404(a).

In 1948, Sec. 1404(a) became effective. It was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient federal forum, even though venue was proper. The statute "has, in effect, codified and replaced this doctrine whenever the more convenient tribunal is the United States District Court where the action 'might have been brought.' " Vanity Fair Mills, Inc. v. T. Eaton Company, 234 F.2d 633, 645 (2d Cir.); cert. denied, 352 U.S. 871, 77 S. Ct. 96, 1 L. Ed. 2d 76 (1956); 15 Wright, Miller & Cooper, Sec. 3841. Since the doctrine of forum non conveniens has been incorporated into Sec. 1404(a), the decisions respecting the procedure and mode of resolving the issues raised in connection with motions to transfer and motions to dismiss based on forum non conveniens are similar. Both motions may be made either before, as well as after, an answer is filed. Spencer v. Alcoa Steamship Co., 221 F. Supp. 343, 344 (E.D.N.Y.), aff'd, 324 F.2d 957 (2d Cir. 1963); Snam Progetti S.P.A. v. Lauro Lines, 387 F. Supp. 322 (S.D.N.Y. 1974); 1 Moore p 0.145 [4.-3]. In determining such motions, the district court may consider affidavits submitted by both parties, interrogatories, and depositions. Vanity Fair, 234 F.2d at 645; Dahl v. United Technologies Corp., 472 F. Supp. 696, 698 n. 6 (D. Del. 1979), aff'd, 632 F.2d 1027 (3d Cir. 1980); Starnes v. McGuire, 168 U.S.App.D.C. 4, 512 F.2d 918, 933-934 (1974); Plum Tree, Inc. v. Stockment, 488 F.2d 754 (3d Cir. 1973).

In Castanho v. Jackson Marine, Inc., 650 F.2d 546, 550 (5th Cir. 1981), this Court adopted the standard used for the consideration of a petition for mandamus, sought in the context of a district court's decision on a Sec. 1404(a) motion to transfer, to pass on a petition for mandamus seeking to direct the district court to dismiss the action on the basis of forum non conveniens, viz:

"The question of forum non conveniens arises in this case in the form of a motion to dismiss rather than a motion to transfer under section 1404(a) only because the alternative forum is a foreign nation and thus no transfer is possible.... We perceive no reason why a petition for a writ of mandamus aimed at the district court's decision on the applicability of forum non conveniens should be treated any differently when based on a motion to dismiss than when based on a motion to transfer, and we therefore turn to the standard applied to petitions involving district court decisions on section 1404(a) transfer motions."

Because we have been unable to find any forum non conveniens decisions dealing with the precise issue before us, that is, whether the resolution of factual issues raised in connection with a choice of law determination (in the context of a motion to dismiss based on forum non conveniens) must be made by a jury, where one is demanded, we also turn to a case involving Sec. 1404(a), which has considered this issue.

In Chance v. E.I. Dupont Nemours & Company, Inc., 57 F.R.D. 165 (E.D.N.Y. 1972), defendants moved for a transfer under Sec. 1404(a). The issue was whether a jury trial was required to decide issues of fact raised in connection with the choice of law determination, upon which the district court's decision on the motion to transfer depended. The district court began its analysis by noting that "constitutional guarantees of a jury trial in actions at law in federal courts do not mandate a jury determination of every issue of fact." 57 F.R.D. at 169. The court then held that the resolution of the factual issues respecting the choice of law determination was for the court, and not a jury:

"The nature of the inquiry which must be undertaken to resolve choice of law questions renders its determination by the jury unworkable in many instances. While under the old hard and fast choice of law rules the jury was probably as capable as the court of resolving the issue, adoption of the modern significant relationship test makes jury determination of all of the factors bearing upon choice of law impossible and its resolution of factual issues upon which some factors hinge a cumbersome, delay-ridden, and potentially confusing and time-wasting process.

"...

"Since the jury will still determine the ultimate facts on the merits, preliminary judicial resolution of the factual issues relevant to the choice of law does not impinge upon the right to jury trial. To extend jury trial to the choice of law issues would result in delay and confusion and thereby impairing the right to jury trial on the merits--the overwhelming objective of the Seventh Amendment." 57 F.R.D. at 170-171.

We agree with the reasoning of the district court, and believe it is applicable here. We hold therefore, that under the circumstances of this case, the choice of law issues, on the resolution of which the court's decision on the forum non conveniens issue was largely dependent, were properly determined by the district court.

Appellants made no assertion in their pleadings or argument to the district court that the choice of law issues and the merits of their case were "factually meshed" so that a hearing or ruling thereon would have disposed of the merits of their cause of action, and therefore should have been deferred until a trial on the merits.⁸  Nor did they ask the district court to receive (or offer to present) "live" testimony respecting the choice of law issues in dispute or ask for additional time to conduct further discovery on these issues. See 5 Moore's Federal Practice p 38.36; Dahl, 472 F. Supp. 696, 698 n. 6 (D. Del. 1979), aff'd, 632 F.2d 1027 (3d Cir. 1980). And finally, appellants made no request or objection in the district court asserting that resolution of the disputed choice of law factors should be made by the jury. Under the circumstances, we cannot say that the district court abused its discretion in the manner it chose to dispose of appellees' motion to dismiss. It is the general rule that such motions should ordinarily be made and determined before trial on the merits. We see no reason to depart from that general rule here.

In reaching its decision to grant appellees' motion to dismiss, the district court considered the affidavits submitted by both parties, the deposition testimony of Mr. Stone, the pleadings, and the arguments of counsel. In its written Memorandum and Order, the court found: (1) that the alleged wrongful act occurred on the Continental Shelf of Brazil; (2) that the decedent and the appellants were citizens of Brazil; (3) that the decedent's employment contract was made in Brazil; (4) that KIDC, the owner of the KEY WEST, was a Bermuda corporation; (5) that the KEY WEST was registered in Liberia; (6) that the KEY WEST "was under charter to Petrobas, the national oil company of Brazil and was engaged in the exploration for oil off the coast of Brazil"; (7) that the KEY WEST was delivered to Brazil in 1974, and has remained "anchored" off that country's coast exploring for natural resources since that time; (8) "that KPM was created at the insistence of the Brazilian government in order that a Brazilian corporation would be responsible for the drilling operations off of that country's coast"; (9) that "the tort arises out of a foreign state's efforts to develop natural resources off its coast"; (10) that the base of operations for the KEY WEST is in Brazil; and (11) that KPM is a separate corporate entity.

Appellants do not dispute any of the first eight findings made by the district court, though they claim Liberian registration was "for convenience only." Nor do they challenge the undisputed facts that each plaintiff is, and decedent was, a Brazilian resident, and that decedent's employment contract, written in Portuguese and providing for dispute resolution in Brazil, was with KPM, a Brazilian entity. Appellants do challenge the last two findings of the district court. The basis for this challenge is essentially the assertion that KPM was controlled by, and was the alter ego of or agent for, Keydril, and that KIDC and Keydril were alter egos of each other, and each has and had its base of operations in the United States. Appellants do not question that KPM existed under Brazilian law as a separate legal entity or that it was formed at the insistence of the Brazilian government so that a Brazilian corporation would be responsible for the drilling operations. Nor do they contend that either the decedent or Petrobas believed the decedent was employed by anyone other than KPM or that the KEY WEST was not registered in Liberia or owned by a Bermudian corporation, or that Petrobas did not know with whom it was contracting. And appellants do not dispute the fixed location and long term nature of the KEY WEST's Brazilian stationing, or that decisions as to day-to-day operations of the KEY WEST during this period were made in Brazil.

Even if the choice of law determination is "in the nature of a decision on a motion for summary judgment," Chirinos de Alvarez v. Creole Petroleum Corp., 613 F.2d 1240, 1244 (3d Cir. 1980), as appellants contend, and even if we assume that the KEY WEST and all the relevant entities were alter egos of and controlled by American companies and had an American base of operations, and that Borralho was hence ultimately the employee of KIDC and Keydril, our decision in Chiazor and our affirmance of the district courts in Martyn v. Transworld Drilling Company, Ltd., No. 78-3423 (E.D. Louisiana, November 20, 1979), aff'd 619 F.2d 82 (5th Cir. 1980) and Zekic v. Reading and Bates Drilling Company, 680 F.2d 1107 (5th Cir. 1982), plainly support the district court's determination that American law did not apply to appellants' lawsuit.

In Chiazor, a Nigerian seaman was injured while working as a mud engineer on a submersible drilling rig which had been stationed off the coast of Nigeria for several years. The rig was owned by a Nigerian corporation, which, in turn, was wholly owned by an American corporation. For the purposes of its decision, this Court assumed that the American corporation was the owner of the rig and that its base of operations was in the United States. The Court then held:

" [E]ven assuming a U.S. base of operations, the substantiality of the contacts herein with Nigeria warrants the non-application of American law. We are unable to state, and [Hellenic Lines Limited v.] Rhoditis [398 U.S. 306, 90 S. Ct. 1731, 26 L. Ed. 2d 252] in fact does not command us to hold, that the shipowner's base of operations is the sole controlling factor in a choice of law decision. Hellinic Lines, Ltd. v. Rhoditis, 398 U.S. at 308, 90 S. Ct. at 1734 (1974). Hence while certain of the eight (Lauritzen and Rhoditis) factors may be substantial in one context, they may be of lesser importance in another. Thus, in Rhoditis, in which the court was concerned with a true maritime vessel, one plying the seas as an integral part of the shipping industry, the shipowner's base of operations was considered one substantial factor, inter alia.

"However, we are faced with a 'vessel' (a submersible drilling rig) that has been permanently stationed off the coast of Nigeria since 1964.... Hence, such factors as place of wrongful act, allegiance or domicile of the injured, and place of contract, which may be less substantial in the shipping context, tend to take on added significance under the present circumstances.

"When viewed in this light, it cannot be said that the district court erred in finding that there were substantial contacts with Nigeria, rather than the United States. The decedent was a Nigerian citizen, he was employed by a Nigerian corporation, the accident occurred off the coast of Nigeria, the 'vessel' has been stationed off Nigeria since 1964, and the plaintiffs are all Nigerian citizens. As in Lauritzen, supra, the overwhelming preponderance of the factors favor the application of Nigerian rather than American law as governing the employment and accident in question.

"The American-owned Nigerian subsidiary conducting the enterprise might possibly be said to have a base of operations in America, it is true, but, unlike Rhoditis, supra, the totality of circumstances of the case indicate this to be a minor weight in the scales." Chiazor, 648 F.2d 1018-1019 (emphasis added).

See also Phillips v. Amoco Trinidad Oil Company, 632 F.2d at 87.

In Martyn, the seaman, a citizen of Ireland, was injured on a drilling rig in the North Sea. Both his employer and the owner of the drilling rig were subsidiaries of an American-based corporation. These were the only contacts with the United States, and the district court held that they were insufficient to warrant application of American law. In Zekic, the seaman was a citizen of Yugoslavia employed by an American corporation to work on an offshore drilling rig owned by an affiliated American corporation and located in Italian territorial waters. The district court held that American law did not apply and dismissed the seaman's action. 536 F. Supp. 23. This Court affirmed the dismissals in both cases.

Here, it is undisputed that Borralho's injury was sustained off the coast of Brazil; that ever since 1974, when it first became operational, the KEY WEST had been continuously stationed off the coast of Brazil drilling for petroleum products exclusively for, and pursuant to contract with, Petrobas, the Brazilian national oil company; that Borralho was a resident and citizen of Brazil during the time he worked on the KEY WEST; that KPM is a Brazilian business entity; that Borralho made his employment contract with KPM in Brazil; that this contract, written in Portuguese, provided all disputes arising therefrom were to be resolved in the forum of Belem, Brazil; and that Borralho's survivors, the appellants, are citizens and residents of Brazil. Although the base of operations for the KEY WEST may have been in the United States and the primary or long term decisions made there (and we so presume for purposes of the appeal), the record shows that day-to-day operating decisions and activities for the KEY WEST were made and conducted in Brazil. Additionally, as in Chiazor, and Zekic, there was nothing to suggest to the district court that any obligations of Keydril or KIDC were being evaded by the use of KPM to operate the rig. Chiazor, 648 F.2d at 1019. In fact, it is undisputed that Petrobas required KIDC (and Keydril) to form KPM, as a Brazilian entity, to perform the drilling as a condition to chartering the KEY WEST from KIDC.

Appellants argue that American ownership and control of the KEY WEST and KPM is sufficient by itself to constitute a substantial contact with the United States warranting the application of American law. Appellants rely on three Second Circuit decisions: Bartholomew v. Universe Tank Ships, Inc., 263 F.2d 437 (2d Cir.), cert. denied, 359 U.S. 1000, 79 S. Ct. 1138, 3 L. Ed. 2d 1030 (1959); Antypas v. Cia Martima San Basilio, SA, 541 F.2d 307, 310 (2d Cir. 1976), cert. denied, 429 U.S. 1098, 97 S. Ct. 1116, 51 L. Ed. 2d 545 (1977); and Moncada v. Lemuria Shipping Corp., 491 F.2d 470 (2d Cir.), cert. denied, 417 U.S. 947, 94 S. Ct. 3072, 41 L. Ed. 2d 667 (1974). Other circuits have declined to follow this approach. See DeMateos v. Texaco, Inc., 562 F.2d 895, 902 n. 3 (3d Cir. 1977), cert. denied, 435 U.S. 904, 98 S. Ct. 1449, 55 L. Ed. 2d 494 (1978). Besides being made in cases factually distinguishable from that at bar, the Second Circuit's assertion that American ownership and control alone suffices to warrant the application of American law has been rejected by this Court in Chiazor, at least insofar as it concerns offshore drilling platforms at long term fixed locations. See also Anastasiadis v. SS Little John, 346 F.2d 281, 284 (5th Cir. 1965), cert. denied, 384 U.S. 920, 86 S. Ct. 1368, 16 L. Ed. 2d 440 (1966); Zekic. The Ninth Circuit's decision in Phillips v. Amoco Trinidad Oil Company, supra, is to the same effect as our Chiazor and Zekic holdings.

Appellants' next argument is that the district court erroneously used a balancing test instead of a substantiality test to make its choice of law determination. In Rhoditis, the United States Supreme Court adopted the rule announced in Bartholomew for making the choice of law determination:

"The decisional process of arriving at a conclusion on the subject of the application of the Jones Act involves the ascertainment of the facts or groups of facts which constitute contacts between the transactions involved in the case and the United States, and then deciding whether or not they are substantial. Thus each factor is to be 'weighed' and 'evaluated' only to the end that, after each factor has been given consideration, a rational and satisfactory conclusion may be arrived at on the question of whether all the factors present add up to the necessary substantiality. Moreover, each factor, or contact, or groups of facts must be tested in the light of the underlying objective, which is to effectuate the liberal purposes of the Jones Act." Rhoditis, 398 U.S. at 309 n. 4, 90 S. Ct. at 1734 n. 4, 26 L. Ed. 2d at 256 n. 4, quoting Bartholomew, 263 F.2d at 441; see also Fisher v. Agios Nicolaos V, 628 F.2d at 315.

In the instant case, the district court recited the choice of law factors of Lauritzen and Rhoditis, and then held that:

"Superimposed upon the facts of this case, the factors quantitatively and qualitatively demonstrate that the United States law should not control...." (emphasis added).

This language shows that the district court gave consideration not only to the number of contacts present, but to their substantiality as well. Moreover, as the Ninth Circuit said in Phillips, "Substantiality is a relative term, and Lauritzen requires that we compare the substantiality of our interest in a given transaction with that of other nations." Id., 632 F.2d at 86. To the same effect is Chirinos de Alvarez v. Creole Petroleum Corporation, 613 F.2d at 1246, 1247 ("... the Venezuelan concerns are considerable; the United States interests pale in comparison.").

Appellants' final choice of law contentions are that the district court's distinction between drilling rigs and blue water vessels violates the Jones Act, the Fourteenth Amendment to the United States Constitution, and existing case law by discriminating against the owners of blue water vessels. Appellants also assert that treating the nationality and residence of seamen as a potentially decisive element in the choice of law determination violates the equal protection clause of the Fourteenth Amendment. Both contentions are entirely without merit. Appellants plainly have no standing to assert that the court's distinction between drilling rigs and seagoing vessels discriminates against the owners of the seagoing vessels. Such distinction already has been drawn by this Court in Chiazor, 648 F.2d at 1019, and by the Ninth Circuit in Phillips, 632 F.2d at 86, 87, and similar distinctions have been made in other maritime contexts. See Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S. Ct. 1835, 23 L. Ed. 2d 360 (1969). As to the distinction between foreign and resident plaintiffs for choice of law purposes, this distinction is fully justified, as recognized by the Supreme Court in Piper and Lauritzen. See also Symonette Shipyards, Ltd., supra, 365 F.2d at 467; Phillips, supra, 632 F.2d at 88, 89. The Constitution does not require the United States, as a condition of applying its laws to its own citizens and residents, to be courthouse or law maker for the world.⁹ 

FORUM NON CONVENIENS

Because the appellants asserted claims under American law only, once the district court determined that American law did not apply, "it could have properly dismissed the case pursuant to Federal Rule of Civil Procedure 12(b) (6) for failure to state a claim upon which relief can be granted, and, if deposition and affidavits were considered [as they were in this case] have granted a summary judgment under Rule 56."¹⁰  Chiazor, 648 F.2d at 1028 n. 7. See also, Serrano v. Empresa Lineas Maritimas Argentinas, 257 F. Supp. 870, 872 (D.C.Md.1966); Comment, A New Look at Lauritzen v. Larsen, Choice of Law and Forum Non Conveniens, 38 La.L.Rev. 957, 968-969 (1978). The district court, however, proceeded to dismiss the case under the doctrine of forum non conveniens.¹¹ 

In their brief, appellants contend that appellees failed to discharge their burden to show that the Brazilian forum was accessible or that appellants had an adequate remedy under Brazilian law. Appellants make this assertion in connection with their argument respecting the choice of law determination. Although the accessibility of the foreign forum was discussed in Lauritzen, the court there stated that "this might be a persuasive argument for exercising a discretionary jurisdiction to adjudge a controversy, but it is not persuasive as to the law by which it shall be judged." Thus, the accessibility of the foreign forum pertains to the forum non conveniens determination rather than to choice of law. Piper, 454 U.S. at 254, 102 S. Ct. at 265, 70 L. Ed. 2d at 435; Samad v. Etivebank, 134 F. Supp. 530, 536 (E.D. Va. 1955).

In Piper, the Supreme Court stated:

"At the outset of any forum non conveniens inquiry, the [district] 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. Gilbert, supra [330 U.S. 501], at 506-507, 91 L. Ed. 1055, 67 S. Ct. 839 . 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." 454 U.S. at 254 n. 22, 102 S. Ct. at 265 n. 22, 70 L. Ed. 2d at 435 n. 22.

The Court in Piper did, however, hold that under normal circumstances the possibility of an unfavorable change in the law should not be a relevant consideration in a forum non conveniens inquiry.

Appellants argued in the district court that appellees' motion was defective because it failed to show any other forum besides the United States where Keydril and KIDC would be amenable to service of process. Appellees, however, stipulated "that Keydril Company and Key International Drilling Company will appear in connection with any action instituted in Brazil arising from this incident. KPM, a Brazilian entity, of course, is susceptible to jurisdiction in Brazil and will likewise appear." On appeal, appellants reassert this argument and also argue, for the first time, that appellees failed to show that they had an adequate remedy under Brazilian law.

As to the accessibility of the Brazilian forum, appellees showed that Brazilian courts were open to appellants. Appellants are residents of Brazil, and appellees stipulated that they would appear in the Brazilian courts if the matter were pursued there. See Chiazor, 648 F.2d at 1020; Schertenleib v. Traum, 589 F.2d 1156, 1164 (2d Cir. 1978).¹²  The contract between KPM and Borralho is also some evidence that the Brazilian courts are open to consider disputes arising out of an employer-employee relationship (and that they provide remedies to employees).

As to the substantive law of Brazil, we reject the notion that in the absence of a showing to the contrary, the presumption is that the substantive law of the foreign forum is inadequate. The presumption, instead, is that the substantive law of the foreign forum is adequate. See Munich Reinsurance Company v. SS Eskisehir, 1972 A.M.C. 2231 (S.D.N.Y. 1972); Anastasiadais, 346 F.2d at 283 (in holding forum non dismissal proper we stated: "There has been no showing ... that Greek laws would be unjust if applied and enforced."); Chemical Carriers v. L. Smit & Company's Internationales, 154 F. Supp. 886, 888-889 (S.D.N.Y. 1957).¹³  This view is further supported by the reasoning of the Supreme Court in Piper:

"Except for the court below, every federal court of appeals that has considered this question after Gilbert has held that dismissal on grounds of forum non conveniens may be granted even though the law applicable in the alternate forum is less favorable to the plaintiff's chance of recovery....

"If the possibility of a change in law were given substantial weight, deciding motions to dismiss on the ground of forum non conveniens would become quite difficult. Choice-of-law analysis would become extremely important, and the courts would frequently be required to interpret the law of foreign jurisdictions. First, the trial court would have to determine what law would apply if the case were tried in the chosen forum, and what law would apply if the case were tried in the alternative forum. It would then have to compare the rights, remedies, and procedures available under the law that would be applied in each forum. Dismissal would be appropriate only if the court concluded that the law applied by the alternative forum is as favorable to the plaintiff as that of the chosen forum. The doctrine of forum non conveniens, however, is designed in part to help courts avoid conducting complex exercises in comparative law. As we stated in Gilbert, the public interest factors point towards dismissal where the court would be required to 'untangle problems in conflict of laws, and in law foreign to itself.' Gilbert, supra [330 U.S. 501], at 509, 91 L. Ed. 1055, 67 S. Ct. 839 ." 454 U.S. at 250-251, 102 S. Ct. at 262-263, 70 L. Ed. 2d at 432-433. (emphasis added).

The Court, however, added:

"We do not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquiry. Of course, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice." 454 U.S. at 254, 102 S. Ct. at 265, 70 L. Ed. 2d at 435.

It follows from this language that the district court may presume that the foreign law is adequate, unless the plaintiff makes some showing to the contrary, or unless conditions in the foreign forum otherwise made known to the court, plainly demonstrate that the plaintiffs are highly unlikely to obtain basic justice therein.¹⁴ 

In the instant case, appellants made no assertion in the district court that the substantive law of Brazil provided an inadequate remedy or that they could not expect to obtain justice in the Brazilian courts. Nor did the circumstances of the case give any such indication. In the absence of any such assertions or circumstances, we hold that the district court did not abuse its discretion in dismissing appellants' action under the doctrine of forum non conveniens.

THE ORDER OF DISMISSAL

Although appellees have stipulated that they will submit to the jurisdiction of a Brazilian court, we feel that to properly protect the interests of appellants, the dismissal should be made conditional. We therefore reverse and remand the case so that the district court may fashion an order of dismissal based upon appropriate conditions. We suggest that consideration be given to conditioning the dismissal on the following: that appellees submit to service of process and jurisdiction in the appropriate Brazilian court in which plaintiffs shall have filed suit within 90 days of the order of dismissal; that appellees formally waive in the Brazilian proceeding any statute of limitations defense that has matured since the commencement of this action in the Southern District of Texas; that appellees formally agree in the Brazilian court to make available in Brazil all relevant witnesses and documents within their control and that any depositions, answers to interrogatories and the like filed herein may be used in the Brazilian proceeding to the same extent as if they had originated therein; that appellees formally agree in the Brazilian proceeding to satisfy any final judgment rendered by such court; and that should appellees fail to promptly meet any of these conditions, the district court will resume jurisdiction over the case. The conditional order might also provide that it can be made final by appellees (1) if appellants do not file suit in the appropriate Brazilian court within 90 days after the order becomes effective or (2) if the case is timely filed, that appellees have complied with all of the conditions of the order and the appropriate Brazilian court has not finally declined jurisdiction. However, should the appropriate Brazilian court subsequently finally decline jurisdiction over the case, it may be reopened by plaintiffs in the district court, if it were timely filed in Brazil in accordance herewith, and limitations will not run during the period from the initial filing herein until 90 days after the Brazilian court's declining of jurisdiction. Notice of a motion to make the conditional order final, of course, should be given to appellants, and appellants given the opportunity to resist the motion on grounds of noncompliance only.¹⁵ 

The district court's judgment is therefore reversed and remanded.

REVERSED and REMANDED.