17-1018 Wave Studio, LLC v. General Hotel Management, Ltd.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32 .1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “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 the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
26 th day of February, two thousand eighteen.

Present: ROSEMARY S. POOLER, ROBERT D. SACK, SUSAN L. CARNEY, Circuit Judges

.

_____________________________________________________

THE WAVE STUDIO, LLC,

Plaintiff-Appellant

,

v. 17-1018-cv

GENERAL HOTEL MANAGEMENT LTD.,

Defendant-Appellee

. 1

_____________________________________________________
Appearing for Appellant: Vijay K. Toke, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, CA

Nate Garhart, Cobalt LLP, Berkeley, CA ( on the brief )

Appearing for Appellee: Daniel D. Barnes , Chiesa Shahinian & Giantomasi PC (Abigail Jean Remore, Ronald L. Israel, on the brief ), West Orange, N.J.

Appeal from the United States Di strict Court for the Southern Di strict of New York (Seibel, J. ).

1 The Clerk of Court is respectfully di rected to amend the caption as above.2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

.

Appellant The Wave Studio, LLC (“Wave Studio”) appeals from the March 10, 2017
order of the United States Dist rict Court for the Southern Di strict of New York (Seibel, J. ), granting appellee General Hotel Management Ltd.’s (“GHM”) motion for summary judgment, dismissing Wave Studio’s clai m on forum non conveniens grounds , and severing Wave Studio’s claims against GHM. The Wave Studio, LLC v. General Hotel Management Ltd. , No. 13-cv9239, 2017 WL 972117 (S.D.N.Y. March 10, 2017). We assu me the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. 2

Because the doctrine of forum non convenien s regards a trial court’s discretionary
determination of whether it is an appropriate forum in which to adjudicate any given case, we give “substantial deference” to the district court’s decision to dismiss a case on forum non conveniens grounds. Pollux Holding Ltd. v. Chase Manhattan Bank , 329 F.3d 64, 70 (2d Cir 2003). Accordingly, we will reverse a dismissal on forum non conveniens grounds only when a trial court has clearly abused its discretion. Id

.

In this Circuit, a district court must proceed through a three-step process in making forum non conveniens determinations. First, the court must determine the level of deference due to the plaintiff’s choice of forum. Iragorri v. United Techs. Corp. , 274 F.3d 65, 69-73 (2d Cir. 2001). Second, the court must establish that an adequate alternative forum exists. Id. at 73. If one does, the trial court must balance the public and priv ate factors articulated by the Supreme Court in Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 508-09 (1947), Koster v. (Am.) Lumbermens Mut. Cas.
Co. , 330 U.S. 518, 524-27 (1947), and Piper Aircraft Co. v. Reyno , 454 U.S. 235, 257-60 (1981) to determine whether dismissal is appropriate. Iragorri, 274 F.3d at 73-74.

In Iragorri , we explained that while a plainti ff’s home forum is “presumed to be
convenient” and thus enti tled to much deference, id . at 71, a reviewing court must consider whether the plaintiff’s choice of forum was motivated by convenience or by a “desire to impose tactical disadvantage on the defendant” in light of all the relevant facts, id. at 73. In other words,

the greater the plaintiff’s or the lawsuit’s bona fide connectio n to the United States and to the forum of choice and the more it appears th at considerations of convenience favor the
conduct of the lawsuit in the Un ited States, the more difficult it will be for the defendant to gain dismissal for forum non conveniens

.

2 The district court severed Wa ve Studio’s claim against GHM from its claims against GHM’s co-defendants before granting dismissal ag ainst GHM for forum non conveniens reasons. Wave Studio, LLC , 2017 WL 972117, at *9-10; see Fed. R. Civ. P. 21. GHM’s argument that we lack jurisdiction to hear this appeal is therefore meritless. Spencer, White and Prentis Inc. of Conn. v. Pfizer Inc. , 498 F.2d 358, 361 (2d Cir. 1974) (“[A]ppeal from a judgment on a validly severed single claim may be timely taken as of right notwithstanding the pendency of the remaining claims. . . . ”).3 Id. at 72 (footnote omitted). Wave Studio argues th at the trial court erre d in not according its choice of forum a high level of deference because the Southern District of New York is its home forum. GHM argues that Wave Studio’s choice of fo rum is entitled to no deference because it is a domestic plaintiff on paper only.

The district court summarized its assessment of the deference due to the plaintiff’s choice of forum in a manner that has implications for the entire forum non conveniens analysis:

Plaintiff’s principal, Ms. Lee, is a Malays ian citizen domiciled in Singapore, the Wave Entities [with whom GHM contracted] are or were organized under the laws of Singapore, GHM has its principal place of bus iness in Singapore, and the arrangements among them were no doubt centered there. Plai ntiff has never had any employees that
reside in the United States or leased or owned any office space here. Mr. Kawana, who
worked for the Wave Entities in connection with the photographs created for GHM, is a citizen of Japan apparently based in Singapor e. None of the photographs that Plaintiff asserts have been infringed in this action were taken in New York, and they were all first published in Singapore. Plainti ff’s only connection to New York is that it is organized under New York law, and it is obvious that is the case only because the American attorney Ms. Lee originally hired to form Pl aintiff and bring these lawsuits happened to
have his office in White Plains.

The Wave Studio, LLC , 2017 WL 972117, at *6. The district c ourt evaluated the facts of the litigation in the kind of holistic manner dema nded by relevant precedents. In doing so, it appropriately embraced the Piper Court’s emphasis on reasonable ness and convenience, as well as its preference for a doctrine that is flexibly applied to the specific facts of any given case. See Piper , 454 U.S. at 249-50, 255-56. Piper and Iragorri make clear that a plaintiff’s status as a “foreign” or “domestic” entity or individual is not dispositive of a proper forum non conveniens analysis. Accordingly, a paper plaintiff like the one in this case should not be afforded great deference regarding its choice of forum simply because it was organized under the laws of New York. Instead, the district court was tasked w ith assessing the “bona fi de connection” of the plaintiff and the lawsuit to the United States and the Southern District of New York to determine
whether deference is warranted. Iragorri , 274 F.3d at 72. The district court’s determination that plaintiff’s choice of forum is “entitled to litt le deference” due to the “absence of meaningful
connections between Plaintiff and the Southern District of New York, and the evidence suggesting forum shopping” (including some admissi ons on that score by Wave Studio) was not
an abuse of discretion. The Wave Studio, LLC, 2017 WL 972117, at *6.

On appeal, Wave Studio argues that the district court erred in not considering Singapore courts’ ability to adjudicate its infringement (a s opposed to its copyright ownership) claims. But
Wave Studio did not raise this ar gument before the district cour t, and “[i]n general we refrain from passing on issues not raised below.” Virgilio v. City of New York , 407 F.3d 105, 116 (2d Cir. 2005) (internal quotation marks and citation om itted). Even if this issue had been raised below, however, as the mere existence of the Si ngapore Copyright Act illustrates, Singapore law includes copyright principles. The record contains no reason to conclude that Singapore courts are not entirely capable of pr operly adjudicating copyright owne rship and infringement claims.
See Creative Tech., Ltd. v. Aztech Sys. Pte., Ltd. , 61 F.3d 696, 701-03 (9th Cir. 1995).4 Additionally, the district cour t properly balanced the public and private interests at stake in the litigation. On all prongs of the analysis, the district court determined that Singapore was a preferable forum. The district court did not abuse its discretion in making those determinations.

We have considered the remainder of appella nt’s arguments and find them to be without merit. Accordingly, the order of the district c ourt hereby is AFFIRMED. E ach side to bear its

own costs. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk