[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 11595

________________________ D.C. Docket No. 0:17

- cv - 60949

- BB

FRESH RESULTS, LLC, a Delaware limited liability company, Plaintiff

- Appellant,

versus ASF HOLLAND, B.V., a Dutch corporation, Defendant

- Appellee, TOTAL PRODUCE, PLC , a n Irish public limited company, Defendant.

________________________ Appeal from the United States Distr ict Court for the Southern District of Florida

________________________ (April 22, 2019 ) Case: 18-11595 Date Filed: 04/22/2019 Page: 1 of 172 Before WILLIAM PRYOR and NEWSOM , Circuit Judges , and ROSENTHAL, * District Judge

. WILLIAM PRYOR, Circuit Judge : Th e main issue presented by this appeal is whether the district court abused its discretion when it dismissed a complaint for forum non conveniens because it failed to consider all relevant public factors for each forum after determining that the private fac tors for the litigants were not in equipoise. Fresh Results, an American company, arranged bulk shipments of blueberries for ASF Holland, a Dutch company that repacks wholesale produce to sell to European customers. ASF Holland created reports about the re sults of its inspection of the shipments , and those reports determined the final price it paid for the blueberries. Fresh Results filed a complaint against ASF Holland in the Southern District of Florida, alleging that it had falsified the reports and frau dulently deflated the price. ASF Holland moved to dismiss the complaint on the ground that the Netherlands was a more convenient forum for the suit, and the district court agreed. After c oncluding that the interests of the litigants

— the so

- called “private factors”

— were not in equipoise, the district court ruled that it need not con sider all relevant “ public factors ” for each forum and dismissed the complaint so that the litigation could proceed in the Netherlands. The district court derived the equipoise standard from

* Honorable Lee H. Rosenthal , Chief United State s District Judge for the Southern District of Texas, sitting by designation.

Case: 18-11595 Date Filed: 04/22/2019 Page: 2 of 173 dicta in our precedent, La Seguridad v. Transytur Line , 707 F.2d 1304, 1307 (11th Cir. 1983) , that we have since recited in dicta in other cases

. Fresh Results contends that the district court abused its discretion when it weighed the private factors in favor of dismissal and when it failed to consider the relevant public factors. Because we agree that the district court abused its discretion when it failed to consider the relevant public factors and c ommitted two errors in its analysis of the private factors, we vacate and remand. I. BACKGROUND This appeal concerns a blueberry deal that soured. Fresh Results, a n American company , acts as a sales agent for growers of produce in South America. In 2015, F resh Results arrange d bulk shipments of blueberries for two seasons for ASF Holland, a Dutch company that buys wholesale produce to repack and sell to customers in Europe. To initiate a shipment, ASF Holland would request blueberries from Fresh Results at a reference price that purportedly reflected its anticipated net returns. When Fresh Results received the request, it would coordinate with the growers to fulfill the order. The growers would send the blueberries from South America directly to the Netherlands by air freight

. When the shipment arrived , ASF Holland

was responsible for inspect ing , sort ing , and repack ing the blueberries in a timely

manner. It would then send Fresh Results several reports on the shipment , with

Case: 18-11595 Date Filed: 04/22/2019 Page: 3 of 174 detail s of its inspection, sorting, sales prices, and expenses. Fresh Results used the reports to adjust the reference price and create an invoice for ASF Holland with the final price. ASF Holland would remit the invoice amount to Fresh Results in Florida. During the second season, one of the growers hired an auditor to make a n unannounced inspection of a blueberry shipment at ASF Holland ’s facility in the Netherlands . The auditor allegedly discovered that the blueberries were still in their original freight package, even though ASF Holland had reported to Fresh Results that the shipment had been inspected, sorted, and repacked. After learning of the auditor’s inspection, Fresh Results demanded that ASF Holland pay the market price for each shipment of blueberries it had received, but ASF Holland refused. Fresh Results filed a complaint , which it later amended, against ASF Holland in the Southern District of Florida. Fresh Results asserted claims of breach of contract, negligent misrepresentation, fraud, conversion, and tortious interf erence with its business relationship with the growers. It alleged that ASF Holland fraudulent ly promised a high reference price but then deflated the actual price it paid by sending false report s . According to Fresh Results, ASF Holland manipulated the price by understating the amount paid by its European customers and by falsely inflating its expen ses in the reports. ASF Holland informed the

Case: 18-11595 Date Filed: 04/22/2019 Page: 4 of 175 district court that it w ould pursue counterclaims against Fresh Results for sending substandard blueberries. ASF Holland then moved to dismiss the complaint for failure to state a claim and forum non conveniens

. It argu ed that the Netherlands wa s a more convenient forum for the dispute. ASF Holland presented an affidavit from Ronald Jongbloed, its managing director, in which he assert ed that the important documents and witnesses are in the Netherlands. And it pre sented an affidavit from Sebastiaan Moolenaar, a Dutch la w yer, in which he assert ed that Fresh Results can obtain relief for all its claims in the Netherlands and that the United States has no treaty with the Netherlands for the reciprocal enforcement of j udgments. The district court granted the motion on the ground that forum non
conveniens warranted dismissal

. Although it explained that a strong presumption favors Fresh Results’ choice of forum , the court ruled that the private factors weighed in favor of dismissal. It reasoned that most sources of proof needed to prove Fresh Results’ claims are in the Netherlands, where the blueberries were delivered, re packed, and sold and where the reports were allegedly falsified. Although Fresh Results contende d that the South American growers were willing to participate in litigation only in the United States and not in the Netherlands , the district court disregarded the growers’ testimony as a source of proof because they

were no t parties. And it weighed in favor of dismissal the possibility for view of

Case: 18-11595 Date Filed: 04/22/2019 Page: 5 of 176 ASF Holland’s facility in the Netherlands. Because the United States has no treaty with the Netherlands for the reciprocal enforcement of judgments, the court concluded that Fresh Results would inevitably have to litigate in the Netherlands to enforce a judgment if it obtained one , so it weighed the enforceability of a judgment in favor of dismissal

. The district court decided that it need not consider the public factors if the priv ate factors were not “in equipoise or near equipoise , ” relying on King v. Cessna Aircraft Company , 562 F.3d 1374, 1382 (11th Cir. 2009) (quoting La Seguridad , 707 F.2d at 1307)

. It then concluded that all “the private interest factors align in favor of Defendant’s position and are thus not [in] equipoise, [so] it need not engage in an exhaustive analysis of all public interest[] factors.” T he court also concluded that “[n]onetheless, the public interest fac tors favor dismissal as well , ” but i t discussed only one public factor, choice of law , and weighed that factor in favor of dismissal because Dutch law would likely apply. The court dismissed the complaint for forum non conveniens and declined to decide the other grounds for dismissal asserted by ASF Holland. II. STANDARD OF REVIEW Because “[t] he forum non conveniens determination is committed to the sound discretion of the trial court ,” we review for abuse of discretion. Piper Aircraft Co. v. Reyno , 454 U.S. 235, 257 (1981). “[W] here the court has

Case: 18-11595 Date Filed: 04/22/2019 Page: 6 of 177 considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves s ubstantial deference.” Id. III. DISCUSSION Under the doctrine of forum non conveniens , a district court may decline to exercise its jurisdiction when a foreign forum is better suited to adjudicate the dispute

. See Kolawole v. Sellers , 863 F.3d 1361, 1369 (11th Cir. 2017). The “central purpose” of forum non conveniens is “to ensure that the trial is convenient.” Id. (citation and internal quotation marks omitted). The doctrine should not be invoked “ lightly

. . . because it effectively deprives the plaintiff of his favored forum , ” i d. , and so a defendant bears the burden of justify ing dismissal based on forum non conveniens , La Seguridad , 707 F.2d at 1309. To satisfy t his burden, the defendant must establish that “ (1) an adequate alternative forum is available, (2) the public and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice.” Tazoe v. Airbus S.A.S. , 631 F.3d 1321, 1330 (11th Cir. 2011) (quoti ng Leon v. Millon Air, Inc. , 251 F.3d 1305, 1310

– 11 (11th Cir. 2001)). The second part of the forum non conveniens analysis

— the balancing of the private and public factors

— is a “comparative inquiry [that] requires the district court to weigh the ‘relative’ advantages and disadvantages of each respective forum.” Id. at 1331. The private factors “pertain to the interests of the participants

Case: 18-11595 Date Filed: 04/22/2019 Page: 7 of 178 in the litigation.” Id. One of these f actor s is “the relative ease of access to sources of proof,” which includes the “ availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses .” Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 508 (1947 ); see also Piper Aircraft , 454 U.S. at 241 n.6. Other factors are the “ possibility of view of premises, if view would be appropriate to the action ” and the enforceability of a judgment , if one is obtained , Gulf Oil , 330 U.S. at 508

. And a court may consider “ all other practical problems that make trial of a case easy, expeditious and inexpensive .” Id. The public factors “pertain to the relative interests of the two fora.” Tazoe , 631 F.3d at 1333. Among other things, the public factors consider “the administrative difficulties flowing from court congestion,” “ the ‘ local interest in having localized contr oversies decided at home, ’ ” and “the unfairness of burdening citizens in an unrelated forum with jury duty.” Piper Aircraft , 454 U.S. at 241 n.6 (quoting Gulf Oil , 330 U.S. at 509)

. A court may also consider what law will govern the action, including “the avoidance of unnecessary problems in conflicts of laws” and “the application of foreign law.” Id. Fresh Results challenges the balancing of the private and public factors by the district court

. Fresh Results argues that the district court abused its discre tion both when it weighed the private factors in favor of dismissal and when it failed to consider all the relevant public factors. We agree.

Case: 18-11595 Date Filed: 04/22/2019 Page: 8 of 179 We divide our discussion in two parts. First, we explain that the district court abused its discretion when it failed to consider the public factors after determining that the private factors were not in equipoise. Second, we explain that the district
court committed two errors in its analysis of the private factors.
A. The District Court Abused I ts Discretion when It Failed to Consider the Relevant Public Factors After Determining that the Private Factors W ere Not in Equipoise. Fresh Results argues that the district court abused its discretion when it failed to consider all relevant public factors after conclud ing that the private factors were not in equipoise

. The equipoise standard employed by the district court comes from dicta in our caselaw. Although our holdings are precedential, our dicta are
not

. See United States v. Caraballo

- Martinez , 866 F.3d 1233, 1244 (11th Cir. 2017). Dicta refer to “those portions of an opinion that are not necessary to deciding the case then before us.” Id. (citation and quotation marks omitted). In contrast, our holdings “constitute the precedent, as a point necessarily decided” in that case. Bryan A. Garner et al., The Law of Judicial Precedent § 4, at 44 (2016) (emphasis omitted); accord Powell v. Thomas , 643 F.3d 1300, 1304

– 05 (11th Cir. 2011) ( explaining that “a holdi ng is comprised both of the result of the case and those portions of the opinion necessary to that result by which we are bound” (citation and internal quotation marks omitted)). And we have explained that, “regardless of what a court says in its opinion, the decision can hold nothing

Case: 18-11595 Date Filed: 04/22/2019 Page: 9 of 1710 beyond the facts of that case.” Edwards v. Prime, Inc. , 602 F.3d 1276, 1298 (11th Cir. 2010). Our first mention of the equipoise standard occurred in dicta in La Seguridad v. Transytur Line , 707 F.2d 1304, 1307 (11th Cir. 1983 )

. In that decision, we quoted at length from a general description of the forum non
conveniens analysis from a decision of the District of Columbia Circuit, Pain v. United Technologies Corporation , 637 F.2d 775, 784

– 85 (D.C. Cir. 1980). One sentence in our block quotation from Pain stated that “[i]f the trial judge finds [the] balance of private interests to be in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of a t rial in a foreign forum.” La Seguridad , 707 F. 2 d at 1307 (quoting Pain , 637 F.3d at
784

– 85). We never drew particular attention to that sentence, and the equipoise standard was of no particular relevance in the context of our discussion. But, in the next p aragraph, we explained that “controlling weight cannot be given to any one factor in the balancing process or the doctrine would lose much of the flexibility that is its essence.” Id. And we made no further mention of the equipoise standard anywhere else i n our decision

. Nor was the equipoise standard a point necessarily decided. B ecause the parties in La Seguridad kept shifting their theories of liability and defenses, we held that “the case [was not in] a posture in which the forum non conveniens

Case: 18-11595 Date Filed: 04/22/2019 Page: 10 of 1711 motion could be resolved

. ” Id. at 1309. So “there [was] simply no basis for a forum
non conveniens determination other than sheer speculation.” Id. Because we vacated and remanded on that basis, we had no occasion to adopt Pain ’s equipoise standard as a holding. Indeed, our instructions to the district court on remand made clear that we could not have adopted the equipoise standard as a holding

. Despite our suggestion that a court need not always consider the public factors, we instructed the district court to consider on remand “the interest, if any, of the forum in having a United States court applying controlling United States statutes to shipping contracts that generate much local revenue and employment”

— a public factor. Id. at 1310 . And we instructed the district court that it “ must weigh the advantages of the United States forum in the balance, such as its familiarity with the law that will govern the
suit ”

— another public factor

. Id. (emphasis added) ; see also Gulf Oil , 330 U.S. at 509

. Because we “still [did] not know the underlying nature of” the claims and defenses and were “left only to speculate as to what witnesse s and documents might be relevant and where they might be located,” we could not have known whether the private factors were or were not in equipoise when we issue d these instructions about the public factors. La Seguridad , 707 F.2d at 1308. T he equipoise standard was “not essential to the reasoning behind that decision .” Garner et al., supra § 4, at 44.

Case: 18-11595 Date Filed: 04/22/2019 Page: 11 of 1712 After La Segur i dad , we clarified that the public factors do not “ enter the equation only when the private interest factors are at or near equ ipoise.” Leon , 251 F.3d at 1311 (internal quotation marks omitted). Although “the private factors are generally considered more important tha n the public factors,” we explained that the public factors are not superfluous , ev en when the private factors are far from equipoise. Id. And we opined that “the better rule is to consider both factors in all cases,” which “has been our approach in recent cases.” Id. ; see also SME Racks , Inc. v. Sistemas Mecanicos Para Electronica, S.A. , 382 F.3d 1097, 1100 n.5 (11th Cir. 2004) (“We have clarified that

. . . courts should consider both public and private factors in all cases.” (citation and internal quotation marks omitted)). The equipoise standard is hard to square with Supreme Court pr ecedent. As one commentator has observed, “ t here is no sound basis in either Gulf Oil or the Supreme Court’s later decision in Piper Aircraft Company v. Reyno for such an approach.” 14D Charles Alan Wright et al., Fed eral Prac tice and Proc edure § 3828.4 (4th ed. 2009)

. In Gulf Oil , the Supreme Court set forth the balancing test and provided a nonexhaustive list of both private and public factors, albeit without mention of how the factors fit together. 330 U.S. at 5 08

– 09. Then, i n Piper Aircraft , th e Court explained that we should not disturb a district court’s forum non conveniens decision when it “ considered all relevant public and private interest factors , and where its balancing of these factors [wa s ] reasonable.” 454 U.S. at 257

Case: 18-11595 Date Filed: 04/22/2019 Page: 12 of 1713 (emphasis added) . The Court also explained that a district court may dismiss for forum non conveniens “when trial in the chosen forum would ‘ establish oppressiveness and vexation to a defendant out of all proportion to plaintiff’s convenience ’ or when the ‘ chosen forum is inappropriate because of considerations affecting the court’s own administrative and legal problems .’ ” Id. at 241 (alterations adopted) (emphasis added) (quoting Koster v. Lumbermens Mut.
Cas. Co. , 330 U.S. 518, 524 (1947) )

. That is, a court may d ismiss because of either the private factors, which pertain to the interests of the litigants, or the public factors, which pertain to the interests of the fora. See id. So the Court has at least suggested that the public factors may warrant dismissal on t heir own accord

. See id. We now expressly disavow the equipoise standard. In the light of Piper Aircraft , the District of Columbia Circuit, which we quoted in our first mention of the standard, has since abandoned it. See Nemariam v. Fed. Democratic Republic of Ethiopia , 315 F.3d 390, 393 (D.C. Cir. 2003) (explaining that Piper Aircraft “overrul[ed] the third part of the Pain test”

— that is, the equipoise standard). And

w e too recognize that our dict a about that standard are inconsi stent with Piper

Case: 18-11595 Date Filed: 04/22/2019 Page: 13 of 1714 Aircraft and hold that a district court must consider all relevant public factors when conducting a forum non conveniens analysis. We acknowledge that after ruling that the private factors were not in equipoise and so no “exhaustive analys is of the public interest factors” was required, the district court stated that “[n]onetheless, the public interest factors favor[ed] dismissal as well,” but we cannot conclude based on this conclusory statement that the district court considered all the r elevant public factors. To be sure, the district court discussed the public factor of choice of law, which also touches on aspects of other public factors , s ee Piper Aircraft , 454 U.S. at 241 n.6 , but it did not mention any other public factor. And we cannot be sure that this factor was the only one the district court would have considered relevant had it not been misled by the equipoise standard. ASF Holland contends that district courts should not be required to address all public fact ors in all cases because it would include “numerous and unnecessary public factors that will have no bearing on the court’s ultimate determination,” but this argument misses the mark . Under the correct forum non conveniens analysis, a district court must c onsider all relevant public factors, not all public factors , as ASF Holland suggests. See id. at 257 ; see also Van Cauwenberghe v. Biard , 486 U.S. 517, 528

– 29 (1988) (explaining that “some factors may not be relevant in the context of a particular case”). Our rejection of the equipoise standard means that a

Case: 18-11595 Date Filed: 04/22/2019 Page: 14 of 1715 district court may not bypass the public factors, even when the private factors are not at or near equipoise. We vacate th e dismissal of the complaint and remand for the district court to consider all relevant private and public factors.
B. The District Court Must Correct Two Errors when I t Reweigh s the Private Factors on Remand. Fresh Results also argues that the district court abused its discretion when it weighed the private factors in favor of dismissal. Because we vacate th at dismissal, the district court should also reweigh the private factors on remand. Although it may reach the same result, the district court must correct two errors that it made in its analysis of the pri vate factors. First, when considering the factor of relative ease of access to sources of proof, the district court disregarded the testimony of the South American growers because they are not parties to this suit , but t he relative ease of access to source s of proof is not limited to evidence from the parties. See, e.g. , Ford v. Brown , 319 F.3d 1302, 1308 n.18 (11th Cir. 2003) (considering access to governmental investigations in a suit where the government was not a party). Indeed, the description of the private factors in Piper Aircraft expressly contemplate d access to nonpart y witnesses , including the “availability of compulsory process for

Case: 18-11595 Date Filed: 04/22/2019 Page: 15 of 1716 attendance of unwilling

. . . witnesses” and “the cost of obtaining attendance of willing[] witnesses.” 454 U.S . at 251 n.6 (quoting Gulf Oil , 330 U.S. at 508)

. Although Fresh Results presented an affidavit asserting that the South American growers were willing to testify in the United States but not in the Netherlands , t he district court disregarded the importance of their testimony because “the Growers are not parties to this lawsuit.” That the growers are nonparties is an in adequate basis for ignoring them as a source of proof. To be sure, the district court may find on remand that the importance of the growers’ testimony is insubstantial compared to the location of other sources of proof accessible in the Netherlands

. See Van Cauwenberghe , 486 U.S. at 528 (explaining that a district court may consider whether pieces of evidence “are cri tical, or even relevant , ” and weigh them accordingly). But it cannot categorically disregard their testimony solely because they are nonparties. Second, the district court was distracted by a red herring when it reasoned that the enforceability of a possible judgment favored dismissal because no treaty exists between the United States and the Netherlands that govern s the reciprocal enforcement of judgments. “ T here is no bilateral treaty or mul tilateral convention in force between the United States and any other country on reciprocal recognition and enforcement of judgments.” Enforcement of Judgments , U.S. Dep’t of State, https://travel.state.gov/content/travel/en/legal/travel

- legal

- consideratio ns/internl

Case: 18-11595 Date Filed: 04/22/2019 Page: 16 of 1717 judicial

- asst/Enforcement

- of

- Judges.html (last visited Apr. 2 2 , 2019) (emphas i s added). Relying solely on the absence of a treaty

— when no such treaty exists for the United States

— was an erroneous basis to weigh this factor in favor o f dismissal. And the one

- sided reasoning that Fresh Results “would be required to commence new proceedings in Holland to enforce its judgment” overlooked that the enforcement of a judgment may require a separate proceeding no matter in which forum the suit proceeds. For example, if the suit proceeds in the Netherlands and ASF Holland obtains a judgment for its counterclaims, a proceeding in the United States might still be required to enforce that judgm ent against Fresh Results. Although the district court must correct these two errors when it reweighs the private factors on remand, it may w e ll conclude that the balanc e of the private

— and public

— factors still weigh s in favor of the Netherlands as the more convenient forum for this dispute. We express no opinion on the matter. We commit that determination “ to the sound discretion of the trial court” in the light of our instructions. Piper Aircraft , 454 U.S. at 257. IV . CONCLUSION
We VACATE the dismissal of Fresh Results’ complaint and REMAND for proceedings consistent with this opinion.

Case: 18-11595 Date Filed: 04/22/2019 Page: 17 of 17