### 1 15-2664 Guerrini v. Atmel Corp.



### UNITED STATES COURT OF APPEALS

**FOR THE SECOND CIRCUIT**



# SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER**

**FILED ON OR AFTER J**  **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF** 

**A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  = **S L**  **OCAL R**  **ULE 32.1.1.**  **W HEN CITING A SUMMARY** 

**ORDER IN**  **A DOCUMENT**  **FILED WITH**  **THIS COURT**  **, A**  **PARTY MUST**  **CITE EITHER**  **THE F**  **EDERAL A**  **PPENDIX**

**OR AN**  **ELECTRONIC DATABASE**  **( WITH**  **THE NOTATION**  A **SUMMARY ORDER**  @ **). A**  **PARTY CITING**  **A SUMMARY** 

**ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .** 



### At a stated term of the United States Court of Appeals for 1 

### the Second Circuit, held at the Thurgood Marshall United States 2 

### Courthouse, 40 Foley Square, in the City of New York, on the 3



### 27 **th** 

### day of June, two thousand sixteen. 4

5


### PRESENT: DENNIS JACOBS, 6


### GUIDO CALABRESI, 7


### REENA RAGGI, 8 

### Circuit Judges. 9

10



### - - - - - - - - - - - - - - - - - - - -X 11 

### JEAN YVES GUERRINI, individually and on 12 

### behalf of all other persons similarly 13 

### situated, LFOUNDRY ROUSSET SAS, 14 

### Plaintiffs-Appellants, 15

16


### -v.- 15-2664 17

18


### ATMEL CORP., ATMEL ROUSSET SAS, 19


### LFOUNDRY GMBH, 20 

### Defendants-Appellees. 21

22



### - - - - - - - - - - - - - - - - - - - -X 23

24



### FOR APPELLANTS: PHILIPPE JEAN JOSEPH PRADAL 25 

### (Lauren A. Marshall, on the 26

### 2 brief), Pradal & Associates PLLC, 1 

### New York, NY. 2

3



### FOR ATMEL APPELLEES: MICHAEL LACOVARA (Samuel J. Rubin, 4 

### on the brief), Freshfields 5 

### Bruckhaus Deringer US LLP, New 6 

### York, NY. 7

8



### FOR LFOUNDRY APPELLEES: GREGORY F. HAUSER, Wuersch & 9 

### Gering LLP, New York, NY. 10

11 

### Appeal from a judgment of the United States District Court 12 

### for the Southern District of New York (Swain, J.). 13

14


### UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 15



### DECREED that the judgment of the district court be **AFFIRMED**

. 16

17 

### Plaintiffs Jean Yves Guerrini and LFoundry Rousset SAS 18 

### appeal from the judgment of the United States District Court 19 

### for the Southern District of New York (Swain, J.) dismissing 20 

### for forum non conveniens their complaint asserting principally 21 

### claims under RICO against defendants Atmel Corp., Atmel Rousset 22 

### SAS, and LFoundry GmbH. We assume the parties’ familiarity 23 

### with the underlying facts, the procedural history, and the 24 

### issues presented for review. 25



### This action arises out of the sale of a manufacturing 26 

### facility in France from Atmel Rousset, a French company (and 27 

### a subsidiary of Atmel, a California corporation), to LFoundry, 28 

### a German company. After the sale, the facility was operated 29 

### by LFoundry Rousset, a French subsidiary of LFoundry, which 30 

### employed Guerrini and over 700 other French workers. A few 31 

### years after the sale closed, a bankrupt LFoundry Rousset 32 

### initiated liquidation proceedings in France, and fired most of 33 

### its employees (those terminated comprise the putative class). 34 

### Guerrini and LFoundry allege that Atmel and Atmel Rousset 35 

### conspired with LFoundry to fraudulently convey the 36 

### manufacturing facility to a nearly insolvent LFoundry, 37 

### virtually guaranteeing the bankruptcy of LFoundry Rousset, and 38 

### did so to avoid French labor laws that would have required that 39 

### Atmel Rousset compensate the former employees of the facility 40 

### were Atmel Rousset to shut down the facility itself. 41

### 3 The plaintiffs filed a complaint in the Southern District 1 

### of New York, alleging principally that the defendants’ 2 

### fraudulent scheme violated RICO. The plaintiffs sought and 3 

### received limited jurisdictional discovery in advance of the 4 

### defendants’ motion to dismiss on, inter alia, the ground that 5 

### France is the more appropriate forum for this litigation. 6 

### Based on the pleadings and affidavits, the district court 7 

### conditioned dismissal of the complaint for forum non conveniens 8 

### on the defendants’ written consent to jurisdiction in France. 9 

### After the defendants provided the requisite written consent, 10 

### the district court dismissed the complaint. The plaintiffs 11 

### appealed. 12



### We generally review the dismissal of a case on the basis 13 

### of forum non conveniens for abuse of discretion, Iragorri v. 14 

### United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 2001) (en banc), 15 

### unless the dismissal is based on a forum selection clause, in 16 

### which case we review the decision de novo, Phillips v. Audio 17 

### Active Ltd., 494 F.3d 378, 384 (2d Cir. 2007). See Martinez 18 

### v. Bloomberg LP, 740 F.3d 211, 217 (2d Cir. 2014). 19



### 1. While a forum selection c lause is typically presumed 20 

### to be enforceable, that is only true if the claims in question 21 

### are encompassed by the forum selection clause. Phillips, 494 22 

### F.3d at 386-87. The plaintiffs argue that the district court 23 

### erred in failing to enforce the forum selection clauses 24 

### contained in a variety of contracts related to the sale of the 25 

### manufacturing facility that identify New York as the exclusive 26 

### forum for disputes arising thereunder. LFoundry Rousset is a 27 

### party to two of these contracts and the defendants are party 28 

### to all five of them; but the plaintiffs do not allege that any 29 

### of the contracts have been breached. Because the plaintiffs 30 

### do not bring contract claims, the district court concluded the 31 

### forum selection clauses were irrelevant. We agree. 32



### The gravamen of the plaintiffs’ complaint is that the sale 33 

### of the manufacturing facility from Atmel Rousset to LFoundry 34 

### was a fraudulent conveyance, designed to deny compensation to 35 

### LFoundry Rousset and its employees. This suit has nothing to 36 

### do with the contracts the plaintiffs have identified. Indeed, 37 

### if their claims to void the sale were construed to sound in 38 

### contract, the contract to that sale does not contain a forum 39

### 4 selection clause. The district court correctly rejected the 1 

### plaintiffs’ attempted invocation of the forum selection clauses 2 

### found in ancillary contracts. 3



### 2. Courts must determine and weigh three factors for forum 4 

### non conveniens challenges: (i) the d egree of deference due to 5 

### the plaintiffs’ choice of forum; (ii) whether an adequate 6 

### alternative forum exists; and (iii) the balance of public and 7 

### private interests implicated in the choice of forum. Iragorri, 8 

### 274 F.3d at 70-74. The plaintiffs argue the district court 9 

### abused its discretion with respect to each of the three factors. 10 

### We disagree. 11



### The district court’s well-reasoned opinion identified and 12 

### applied the three-part Iragorri test. We agree with the 13 

### district court that: (i) the plaintiffs’ choice of New York was 14 

### entitled to little weight because Ne w York was plainly chosen 15 

### for a tactical advantage and this suit has little to do with 16 

### New York; (ii) France is an adequate alternative forum because 17 

### French courts tolerate claims like those brought by the 18 

### plaintiffs and the defendants expressly consented to 19 

### jurisdiction there; and (iii) the private and public interest 20 

### factors strongly support adjudication in France because the 21 

### locus of operative facts is in France and France has a far 22 

### greater interest in the litigation than does New York. 23



### Accordingly, and finding no merit in the plaintiffs’ other 24 

### arguments, we hereby **AFFIRM** the judgment of the district court. 25



### FOR THE COURT: 26


### CATHERINE O’HAGAN WOLFE, CLERK 27

28