1 

### REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-50554.

Alan ROBINSON, Plaintiff-Appellant,

v.

TCI/US WEST COMMUNICATIONS INC., TeleWest Communications PLC,

U.S. West I nc., Telecommunications, Inc., Stephen Davidson, Gary

Bryson, Kleinwort Benson Limited, and Kleinwort Benson of North

America, Defendants-Appellees.

July 28, 1997.

Appeal from the United States D istrict Court for the Western

District of Texas.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Alan Robinson appeals the dismissal of his complaint for lack

of subject matter jurisdiction and, in the alternative, forum non

conveniens ("f.n.c."). We reverse in part, vacate in part, and

remand.

I.

In 19 83, Robinson, an English citizen and resident, helped

found Croydon Cable Television Limited ("CCTV"), one of the first

c able franchises in England. Robinson owned only a minority

interest in the company; most of CCTV's funding came from

Cablevision UK Limited ("CUK"), a Florida limited partnership.

CCTV and CUK formed a partnership known as the Croydon Cable

Joint Venture ("C CJV"). In 1989 CUK was sold to United Artists

Cable ("UAC"), an American corporation. CUK's new owner2

re-registered it as a C olorado partnership and renamed it the

United Artists Partnershi p ("UAP"). CCJV was dissolved and

reformed , with UAP taking the former CUK's place in the

partnership.

Robinson also owned a majority interest in the predecessor to

United Artists Communications (London South) PLC ("United

Artists"), the English holding company for the cable fr anchise

licenses that CCTV and the CCJV needed to do business . Prior to

the key events in this case, he sold this interest to TCI/US West

Cable Communications, Inc., ("TCI/US West"), a Colorado

corporation. He retained, however, a separate 3.85% interest in

United Artists that, through United Artists'S 25% participation in

CCTV, effectively gave him his minority interest in the latter

entity.

Soon after the sale of CUK to UAC, disagreements ensued

between Robinson and Jim Dovey, the UAC executive in charge of the

company's English cable interests. Dovey tried to persuade

Robinson to trade his interest in CCTV for a non-voting interest;

Robinson refused. In late 1989, Robinson brought suit in England

against United Artists and three other English defendants, all of

whom Robinson alleges were either directly or indirectly controlled

by Tele Communications, Inc. ("TCI"), and U.S . West, Inc. ("U.S.

West"), two American corporations.

The parties to the lawsuit began settlement negotiations that

Robinson alleges were dir ected from Denver, Colorado, by TCI and

U.S. West. Du ring the negotiations, TCI and U.S. West formed3

TeleWest Communications PLC ("TeleWest"), an English corporation

consisting of a number of English cable franchises in which the two

companies had majority interests.

By the fall of 1993, the state of affairs was this: Robinson

owned a 3.85% interest in United Artists. United Artists was a 25%

participant in CCTV, which by this time had changed its name to the

London South Joint Venture ("LSJV "). The majority of United

Artists's stock was held by TCI, U.S. West, or companies controlled

by the two (such as TCI/U S West, which Robinson alleges was "the

mere shell company or "designee' of United Artists"). Robinson was

a thorn in th e side of TCI and U.S. West, or at least of the

entities they controlled. They wanted him out and were in the

process of negotiating what it would cost.

Robinson alleges that in April 1993, he spoke on the phone

with Gary Bryson, a U.S. West executive in Denver. Bryson told

Robinson that U.S. West wanted to settle the English lawsuit and

that, to that end, Robinson should negotiate with his subordinate,

Stephen Davidson, TeleWest's new finance director. Robinson

alleges that hi s negotiations with Davidson proceeded with the

understanding that Davidson was acting on Bryson's authority. He

claims, for example, that Davidson frequently indi cated that he

needed approval on certain matters from Denver. Robinson also

claims that in September 1993, Davidson phoned him from Denver and

requested that documents be faxed to him at that location.

After lengthy negotiatio ns, Robinson and Davidson reached a

settlement. According to Robinson, the agreement was that he would4

sell TCI/US West his United Artists shares in exchange for two

payments, one to occur at the time the shares were signed over and

one to occur l ater. The immediate payment was to give Robinson

£790,360 in cash. The second payment was to occur within thirty

days of the first of three triggering events: (1) the listing of

United Artists (or any direct or indirect holding company) on the

International Stock Exchange in London or any other stock exchange;

(2) the sale of a controlling interest in United Artists; or (3)

the passage of December 31, 1999. Robinson maintains that the

interest he retained in this second payment was a security within

the meaning of U.S. securities laws.

If the triggering event turned out to be the first of these,

a merchant bank would be required to do a valuation of the LSJV,

and Robinson would be paid according to a specified formula based

on the valuation. Robinson alleges that his primary concern during

the negotiations was that he be paid the full value of his

i nterest. To that end, he says, he liked this scheme, because

Davidson told him the valuation used for computing his payment

would be the same one used in preparation for the stock offering.

Thus, because it would be in TCI/US West's (and, therefore, in TCI

and U.S. West's) interest to get a high valuation, he would be

protected from an artificially low estimate.

Robinson got his £790,360 as promised. In November 1994,

TeleWest purchased the assets of TCI/US West, including United

Artists and the LSJV. The next day, TeleWest stock was offered for

sale on both the London Stock Exchange and the NASDAQ. The stock1 See 17 C.F.R. § 240.10b-5.

5 was marketed throughout the United States.

In pr e paration for its initial public offering, TeleWest

requested a valuation fromKleinwort Benson ("KB"), an English

merchant bank, and Kleinwort Benson of North America ("KBNA"), its

American counterpart. For purposes of its representations to the

public, KB valued the company at $540,000,000 . Robinson alleges

that under the formula in the settlement agreement, this valuation

would have made his retained interest worth $9,000,000.

Unfortunately for Robinson, however, TeleWest instructed KB to

prepare a second and separate valuation for purposes of determining

the value of his stock under the settlement agreement. According

to Robinson, the letter i nstructing KB to prepare this second

valuation was drafted by, and faxed from, U.S. West's legal

department. From there, he claims, it went to TeleWest, which in

turn sent the letter to KB on TCI/US West's letterhead. KB

conducted the second valuation, which when plugged into the formula

resulted in a value of zero for Robinson's stock.

In December 1995, Robin son filed suit in federal court,

alleging two rule 10b-5 causes of action, 1 RICO claims, and various

state law claims. His first rule 10b-5 claim is that the

defendants made an untrue statement of a material fact in

connection with Robinson's sale of his stock to them, in violation

of rule 10b-5(2); the second is that the defendants employed a

device, scheme, or artifice to defraud him in connection with the

sale of his securities, in violation of rule 10b-5(1).6

The defendants fi led motions to dismiss based on lack of

subject matter jurisdiction, lack of personal jurisdiction,

improper venue, and f.n.c. Robinson requested leave to conduct

discovery on the jurisdictional issue s, which the district court

denied. On June 12, 1996, the court dismissed the case for lack of

subject matter jurisdiction and, in the alternative, for f.n.c.

II.

Robinson contends that the dismissal for lack of subject

matter jurisdiction was erroneous for four inde pendent reasons:

(1) The district court ignored Robinson's allegations that TeleWest

and the other English defendants were controlled by American

e ntities such as TCI, U.S. West, and Bryson; (2) the letter

instructing KB to perform a second valuation of the LSJV was

written by, a nd sent from, the legal department of U.S. West, an

American corporation; (3) the defendants' scheme utilized the

NASDAQ, an American s tock exchange, to defraud him; and (4) the

district court reached its conclu sion on subject matter

jurisdiction without allowing Robinson discovery, notwithstanding

the fact that it resolved factual disputes raised by the parties'

conflicting affidavits. As we find the second of these arguments

dispositive, we need not consider the others.

A.

In general, we review a dismissal for lack of subject matter

jurisdiction de novo, using the same standard as applied by the2 McAllister v. Federal Deposit Ins. Corp

., 87 F.3d 762, 765

(5th Cir.1996); W hatley v. Resolution Trust Corp., 32 F.3d 905,

907 (5th Cir.1994).

3 Saraw Partnership v. United States

, 67 F.3 d 567, 569 (5th

Cir.1995) (internal quotations omitted) (quoting Hobbs v. Hawkins,

968 F.2d 471, 475 (5th Cir.1992)).

4 Yncla n v. Department of the Air Force , 943 F.2d 1388, 1390

(5th Cir.1991); M CG, Inc. v. Great W. Energy Corp.

, 896 F.2d 170,

176 (5th Cir.1990).

7 district court. 2 Dismissal is proper only when "it appears certain

that the plaintiffs cannot prove any set of facts in support of

their claim which would entitle them to relief." 3 A court may base

its disposition of a motion to dismiss for lack of subject matter

jurisdiction on (1) the complaint alone; (2) the complaint

supplemented by undisputed facts; or (3) the complaint

supplemented by undisputed facts plu s the court's resolution of

disputed facts. 4 Where, as here, the district court has relied on

the third of these bases and has made jurisdictional findings of

fact, those findings are reviewed for clear error. Williamson v.

Tucker , 645 F.2d 404, 413 (5th Cir. May 1981).

B.

Robinson's allegations require us to conf r ont the rather

nebulous issue of the extent to which the American securities laws

may be applied extraterritorially. The Securities Exchange Act of

1934—the legislation on w hich Robinson's rule 10b-5 claims are

based—is expressly intended

to require appropriate reports, to remove impediments to and

perfect the mechanisms of a national market syste m for

securities and a national system for the clea rance and

settlement of securities transactions and the safeguarding of

securities and funds related th ereto, and to impose5 See, e.g

., MCG, 896 F.2d at 173; I toba Ltd. v. LEP Group

PLC, 54 F.3d 118, 121 (2d Cir.1995), cert. denied, --- U.S. ----,

116 S.Ct. 703,

--- L.Ed.2d

---- (1996); Z oelsch v. Arthur Andersen

& Co., 824 F.2d 27, 29-30 (D.C.Cir.1987); B ersch v. Drexel

Firestone, Inc., 519 F.2d 974, 993 (2d Cir.1975).

8 requirements necessary to mak e such regulation and control

reasonably complete and effective, in order to protect

interstate commerce, the national credit, the Federal taxing

power, to protect and make more effective the national banking

system and Federal Reserve System, and to insure the

maintenance of fair and honest markets in such transactions.

15 U.S.C. § 78b. Section 10(b) of the Exchange Act, under which

rul e 10b-5 was promulgated, forbids "any person, directly or

indirectly, by the use of any means or inst rumentality of

interstate commerce or of the mails" from using "any manipulative

or deceptive device" prohibited by the SEC "in connection with the

purchase or sale of any security." 15 U.S.C. § 78j. "Interstate

commerce" is defined as "trade, commerce, transportation, or

communica tion among the several States, or between any foreign

country and any State, or between any State and any place or ship

outside thereof." 15 U.S.C. § 78c(a)(17). The act vests exclusive

jurisdiction to adjudicate suit s brought under § 10(b) in the

federal district courts. 15 U.S.C. § 78aa.

As many previous courts have noted, however, with one small

exception the E xchange Act does nothing to address the

circ u mstances under which American courts have subject matter

jurisdiction to hear suits involving foreign transactions. 5 That

exception, a provision governing those who conduct an

extraterritorial "business in securities," see 15 U.S.C. § 78dd(b),

does not apply in this case, as none of the parties is alleged to6 Cf

. Schoenbaum v. Firstbrook, 405 F.2d 200, 207 -08 (2d

Cir.1968), overruled on other grounds, 405 F.2d 215 (2d Cir.1968)

(en banc).

7 See, e.g.

, Leasco Data Processing Equip

. C orp. v. Maxwell

, 468 F.2d 1326, 1334-37 (2d Cir.1972) (discussing conduct test);

Schoenbaum, 405 F.2d at 206-08 (discussing effects test).

8 See Merrell Dow Pha rmaceuticals Inc. v. Thompson , 478 U.S.

804, 809 n. 6, 106 S.Ct. 3229, 3233 n. 6, 92 L.Ed.2d 650 (1986)

("Jurisdiction may not be sustained on a theory that the plaintiff

has not advanced.").

9 have conducted a "business in securities" anywhere. 6

This court is thus faced with the task, as we previously have

termed it, of "fill[ing] the void" created by a combination of

con gressional silence and the growth of international commerce

since the Exchange Act was passed in 1934. MCG, 896 F.2d at 173.

The courts that have previously addressed this problem have created

two basic tests for subject matter j urisdiction: the "conduct"

test, whic h in essence asks whether the fraudulent conduct that

forms the alleged violation occurred in the United States, and the

"effects" test, which asks whether conduct outside the United

States has had a substantial adverse effect on American investors

or securities markets. 7 Either may independently establish

jurisdiction. As Robinson does not argue that jurisdiction is

predicated on adverse effects, however, we need concern ourselves

only with the conduct test. 8

The circuits are divided as to precisely what sort of

activities are needed to sat isfy the conduct test, although all

agree that it is based on the idea that Congress did not want "the

United States to be used as a base for manufacturing fraudulent9 See Itoba

, 54 F.3d at 122; P simenos v. E.F. Hutton & Co.,

722 F.2d 1041, 1045-46 (2d Cir.1983); I IT v. Cornfeld, 619 F.2d

909, 918-21 (2d Cir.1980); Bersch, 519 F.2d at 993; Leasco, 468

F.2d at 1335-37; Zoelsch, 824 F.2d at 31-33.

1 0 S ome courts, including the District of Columbia Circuit in

Zoelsch, have suggested that the Second Circuit's test requires all

elements of the alleged fraud to have occurred domestically. See

Zoelsch, 824 F.2d at 31 ("The Second Circuit's rule seems t o be

t hat jurisdiction will lie in American courts where the domes tic

conduct comprises all the elements ... necessary to establish a

10 security devices for export, even when these are peddled only to

foreigners." I IT v. Vencap, Ltd

., 519 F.2d 1001, 1017 (2d

Cir.1975). The more restrictive position—that the domestic conduct

must have been "of material impor tance" to or have "directly

caused" the fraud complained of—is followed in the Second and

District of Columbia Circuits. 9

The discussion in Psime nos is perhaps the most complete

statement of the test. Where (as here) the alleged fraud is in

connection with a sale of securities to a foreigner outside the

United States, the federal securities laws apply only if acts or

culpable failures to act within the United States directly caused

the plaintiff's loss. P simenos

, 722 F.2d at 1045 (quoting Bersch

,

519 F.2d at 993). Thus, "foreign plaintiffs' suits under

anti-fraud provisions of the securities laws [will] be heard only

when substantial acts in furtherance of the fraud were committed

within the United States"; activities that are "merely

preparatory" will not support jurisdiction in and of them selves.

Id

. at 1045-46 (citing Vencap

, 519 F.2d at 1018). The District of

Columbia Circuit has expressly adopted the Second Circuit's caselaw

in this regard. See Zoelsch , 824 F.2d at 33. 10violation of section 10(b) and Rule 10b-5...."); C ontinental Grain

(Australia) Pty. Ltd. v. Pacific Oilseeds, Inc., 592 F.2d 409, 418

(8th Cir.1979) (same). As we intimated in M CG, 896 F.2d at 174-75,

this is a bit of an o verstatement: A close examination of the

Second Circuit's caselaw reveals tha t the real test is simply

whether material domestic conduct directly caused the complained-of

loss. See, e.g., Psimenos, 722 F.2d at 1046; Cornfeld, 619 F.2d

at 920-21. Because the Zoelsch court correctly stated this

standard, Zoelsch, 824 F.2d at 30-31, we assume that its

speculation as to what the rule "seems to be" is a simple

misreading of the cases that was not intended to work any sort of

implicit change in the substantive law. In any case, the Zoelsch

court explicitly adopted the Se c ond Circuit's test for

jurisdiction, id. at 33, and thus cannot reasonably be read to have

fashioned a new rule.

1 1 SEC v. Kasser

, 548 F.2d 109, 114 (3d Cir.1977); C ontinental

Grain, 592 F.2d at 420-21; Travis v. Anthes Imperial, Ltd., 473

F.2d 515, 524 (8th Cir.1973); Butte Mining PLC v. Smith, 76 F.3d

287, 290-91 (9th Cir.1996); G runenthal GmbH v. Hotz

, 712 F.2d 421,

424-25 (9th Cir.1983).

1 2 See Kasser

, 548 F.2d at 114 (holding that the test is whether

"at least some activity designed to further a frau dulent scheme

occurs within this country"); Continental Grain, 592 F.2d at 421

(holding that jurisdiction lies where defendants used

instrumentalities of interstate commerce and their "conduct in the

United States was in furtherance of a fraudulent scheme and was significant with respect to its accomplishment"); G runenthal, 712

F.2d at 425 (expressly adopting the Continental Grain test).

1 3 The Seventh Circui t has applied the conduct test to suits

b rought under the Commodity Exchange Act without distinguis hing

between the competing positions. S ee Tamari v. Bache & Co.

(Lebanon) S.A.L., 730 F.2d 1103, 1107-08 (7th Cir.1984).

11 The Third, Eighth, and Ninth Circuits, in contrast, generally

require some lesser quantum of conduct. 11 To the extent that these

cases represent a common position, it appears to be that the

domestic conduct need be only significant to the fraud rather than

a direct cause of it. 12

The remaining circuits, including ours, do not appear to have

taken sides in th is debate. 1 3 Only two Fifth Circuit cases have

ever addressed the subject. In U nited States v. Cook

, 573 F.2d 2811 4 See, e.g

., Leasco

, 46 8 F.2d at 1334; S choenbaum, 405 F.2d

at 206; s ee also Tamari v. Bache & Co. (Lebanon) S.A.L., 730 F.2d

1103, 1107 n. 11 (7th Cir.1984).

12 (5th Cir.1978), we rejected a jurisdictiona l challenge to a

conviction stemming from a Ponzi scheme that victimized foreign

investors but involved American securiti e s and a considerable

degree of domestic conduct. Finding the scheme "so far within the

jurisdiction of the American courts as to give us little pause," we

deferred for another day the "puzzling questions posed by [ ]

transactions with only a marginal United States nexus." I d

. at

283. Similarly, in M CG

, 896 F.2d at 174-75, we merel y noted the

existence of the circuit split.

We adopt the Second Circuit's test as the better reasoned of

the competing positions. Federal courts are courts of limited

jurisdiction, and we therefore view the debate among the circuits

against the background that legislation, "unless a contrary intent

appears, is meant to apply only within the territorial jurisdiction

of the United States." F oley Bros. v. Filardo

, 336 U.S. 281, 285,

69 S.Ct. 575, 577, 93 L.Ed. 680 (1949). This is not to suggest

that legislation may never be applied to foreign conduct if it does

not explicitly evidence such intent; as every court that has

considered the issue before us has acknowledged, under some

c ircumstances it can and should be so applied. 14 Rather, we mean

only to note that the presumption against extraterritorial

application informs our choice between the Second Circuit's

restrictive test and the more expansive standard applied by the

Third, Eighth, and Ninth Circuits.1 5 See Kasser

, 548 F.2d at 116 ("From a policy perspective, and

it should be recognized that this case in a large measure calls for

a policy decision, we believe that there are sound rationales for

asserting jurisdiction.") (footnote omitted); Continental Grain,

592 F.2d at 421 ("We frankly admit that the f inding of subject

matter jurisdiction in the present case is largely a policy

decision.").

13 What little guidance we can glean from the securities statutes

indicates that they are designed to protect American investors and

markets, as opposed to the victims of any fraud that somehow

touches the United States. S ee 15 U.S.C. § 78b; Z oelsch

, 824 F.2d

at 31-32. To broaden our jurisdiction beyond the minimum necessary

to achieve these goals seems unwarranted in the absence of an

express legislative command. See Zoelsch, 824 F.2d at 32.

Moreover, as the Zoelsch court pointed out, id

. at 32-33, the

results in Kasser and Continental Grain are based more on policy

considerations than on the language of the securities statutes or

the Supreme Court's teachings on extraterritoriality. 15 We agree

with the Zoelsch court's view that Kasser and Continental Grain's

policy arguments for expanding federal ju risdiction "may provide

very good reasons why Congress should amend the statute but are

less adequate as reasons why courts should do so. " Zoelsch , 824

F.2d at 33.

C.

With the Second Circuit's test in mind, then, we return to

R obinson's contention that the instruction letter sent from U.S.

W est's legal department to KB via TeleWest was sufficie ntly

significant conduct to support subject matter jurisdiction.

Although the district court acknowledged that the instruction14

letter caused the valuation of which Robins on complains, it

concluded that "this lone mailing, an event occurring months after

the allegedly fraudulent inducement, cannot justify the heaving of

an entire cause of action, all else of which involves material

conduct occurring in England, across the Atlantic Ocean."

We disagree. As a threshold matter, it is not the case that

all the other conduct material to the case occurred in England,

although certainly most of it did. Robinson's allegation—which at

this st age of the proceedings we must take as true—is that the

entire scheme was directed and controlled from the United States by

TCI and U.S. West. More importantly, the "lone mailing" of the

instruction letter from the United States was one of the key

events—if not the key event—in the alleged scheme to defraud.

The heart of Robinson's claim is that the defendants duped him

into selling his sto ck by telling him there would be only one

valuation. Regardless of whether it constitutes the totality of

the alleged fraud, it is self-evident that the act of requesting

the second valuation was a substantial act in furtherance of the

scheme. The instruction letter was more than merely preparatory—it

directly triggered the injury of which Robinson now c omplains.

This is a sufficient basis for subject matter jurisdiction, and we

accordingly reverse the dismissal of the case on this ground.

III.

Robinson also conten ds that the district court erred in

finding that, in the alternative, his suit should be dismissed for

f.n.c. He has three arguments in this regard: (1) that there is no1 6 In re Air Crash Disaster Near Ne w Orleans, Louisiana, 821

F.2d 1147, 1166 (5th Cir.1987) (en banc), vacated on other grounds

sub nom. Pan Am. World Airways, Inc. v. Lopez, 490 U.S. 1032, 109

S.Ct. 1928, 104 L.Ed.2d 400 (1989), opinion re instated on other

grounds, 883 F.2d 17 (5th Cir.1989) (en banc).

15 evidence that an English forum is available; (2) that the district

court improperly conducted th e public and private interest tests

f or f.n.c.; and (3) that the district court failed to include a

return jurisdictio n clause in its judgment of dismissal. The

burden of showing f.n.c. rests with the defendants, and we review

a district court's determination for abuse of discretion. 16

We address Robinson's third contention first. Relying on A ir

Crash and Baris v. Sulpicio Lines, Inc.

, 932 F.2d 1540 (5th Cir.),

cert. denied

, 502 U.S. 963, 112 S.Ct. 430, 116 L.Ed.2d 449 (1991),

appeal after remand

, 74 F.3d 567 (5th Cir.1996), v acated and

district court judgment aff'd. by an evenly divided court

, 101 F.3d

367 (5th Cir.1996) (en banc), cert. denied

, --- U.S. ----, 117

S.Ct. 1432, 137 L.Ed.2d 540, and cert. denied , --- U.S. ----, 117

S.Ct. 1460, 1 37 L.Ed.2d 564 (1997), Robinson argues that the

failure to include a return jurisdiction clause in an f.n.c.

dismissal constitutes a per se abuse of discretion. He is correct.

As the en banc court stated in Air Crash

,

If the distri ct court decides that the [public and private

interest factors] favor trial in a foreign forum, it must

finally ensure that a plaintiff can reinstate his suit in the

alternative forum without undue inconvenience or prejudice and

that if the defendant obstructs such reinstatement in the

alternative forum that the plaint iff may return to the

American forum.

Air Crash

, 821 F.2d at 1166; s ee also Baris

, 932 F.2d at 1551-52.

The return jurisdiction clause is part of a larger set of16

measures needed "to ensure that defendants will not attempt to

e vade the jurisdiction of the foreign courts," which may also

include "agreements between the parties to litigate in another

forum, to submit to service of process in that jurisdiction, to

waive the ass ertion of any limitations defenses, to agree to

discovery, and to agree to the enforceability of the foreign

judgment." B aris , 932 F.2d at 1551. Although neither A ir Crash

nor Baris provides step-by-step guidance as to what combination of

these measures must be im plemented, B aris unmistakably indicates

that the failure to include a return jurisdiction clause is a fatal

error. I d

. At a mini mum, then, the district court's ruling on

f.n.c. must be vacated and remanded for the implementation of a

return jurisdiction clause.

We address Robinson's remaining contentions in the interest

of judicial economy. Drawing on our cases that require the foreign

forum to be both available and adequate, e.g

., id

. at 1549, his

first argument is that the defendants have failed to make the

requisite showing that England is an available forum. That is, he

argues, there is no evidence to indicate that an English forum is

available, as the defendants failed t o present evidence that the

case and the parties can come within the jurisdiction of an English

court. S ee Air Crash

, 821 F.2d at 1165. In conjunction with this,

he asserts that the fact that TCI and U.S. West have attempted to

escape personal jurisdiction in Texas by arguing that they do not

do business here indicates that they will li kely make similar

arguments in England.17

The defendants, however, point to the uncontroverted affidavit

of Michael John Brindle, Q.C., an English barrister, regarding the

E nglish courts' jurisdiction over the parties and claims in this

case. According to Mr. Brindle, when one party to a fraudulent

conspiracy is English, any alleged co-con spirators outside the

court's ordinary jurisdiction may be joined as "necessary or proper

parties" under Order 11 of the Ru les of the Supreme Court of

England and Wales. We do not think the district court abused its

discretion in relying upon this testimony to find that an English

forum is available. As we stated in B aris

, 932 F.2d at 1551, it is

within the court's discretion to determine what measures it must

implement so as "to ensure that defendants will not attempt to

evade the jurisdiction of the foreign courts." So long as this

general requirement is met, we will not take issue with the manner

in which the district court has chosen to comply with it.

Robinson also argues that there is insufficient evidence in

the record to support the district court's findings on the private

and public interest tests. With some deference to the plaintiff's

choice of forum, the private interest factors that the court must

consider include

the relative ease of access to sources of proof; availability

of compulsory process for attendance of unwilling , and the

costs of obtaining attendance of willing, witnesses;

probability of view of premises, if view would be appropriate

to the action; and all other practical problems that make

trial of a case easy, expeditious and inexpensive. There may

also be questions as to the enforcibility [sic] of a judgment

if one is obtained.

Air Crash

, 821 F.2d at 1162 (quoting Gulf Oil Corp. v. Gilbert

, 330

U.S. 501, 508, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947)). When the18

private interest factors do not weigh in favor of dismissal, the

court must also consider "the administrative difficulties flowing

from court congestion; the local interest in having localized

controversies resolved at home; ... the avoidance of unnecessary

problems in conflicts of law, or in application of foreign law;

and the unfairness of burdening citizens in an unrelated forum with

jury duty." Id . at 1162-63 (citing Gulf Oil , 330 U.S. at 508-09,

67 S.Ct. at 842-43).

Nothing in the record persuades us that t he district court

abused its discretion in this regard. Robinson and Davidson are

English citizens who reside in England. TeleWest is an English

corporation, and Kleinwort Benson an English merchant bank. With

the exception of TCI, U.S. West, and the allegation that they

controlled an d directed English entities from the United States,

everything in this case is grounded in England. Certainly nothing

suggests that the cause should be tried in Texas (as o pposed to

Colorado, the place where TC I and U.S. West are alleged to have

orchestrated the fraud).

Robinson protests that many of the potential witnesses are

located in the United States and that certain types of discovery

available to him here will not be available in England. Given the

enormous scope of discovery permitted under American law, we have

little doubt that he is correct about this. The argument, however,

is in essence an attack on the quantum of the defendants' proof in

the district court rather than on its substance, a basis on which

we are highly reluctant to find an abuse of discretion. We19

therefore conclude that the district court did not err in deciding

that this case belongs in England, and accordingly we remand with

instruction to reinstate the dismissal following the inclusion of

a return jurisdiction clause.

For the foregoing reasons, we REVERSE the dismissal for lack

of subject matter jurisdiction, VACATE the determination as to

f.n.c., and REMAND with instructi on to dismiss following the

addition of a return jurisdiction clause to the judgment.