1

18 U.S.C. § 2255(a):

Any minor who is a victim of a violation of

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DEE BOONMA, as §

Next Friend of John Doe, §

a Minor, §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-0684-D

VS. §

 §

NICHOLAS BREDIMUS, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

A Thailand citizen sues an American citizen in this forum to

recover under 18 U.S.C. § 2255 for sexually-predatory conduct that

the American citizen allegedly committed in Thailand. Defendant

moves to dismiss based on the doctrine of forum non conveniens.

Concluding that the private and public interest factors strongly

demonstrate that the case should be litigated in Thailand, the

court grants the motion. In doing so, the court emphasizes that

the Thailand court is an available and adequate forum. This

decision does not unduly benefit a defendant who has been accused

of heinous sexually-predatory conduct.

I

Plaintiff Dee Boonma (“Boonma”), a Thailand citizen, as next

friend of John Doe (“Doe”), a minor, sues defendant Nicholas

Bredimus (“Bredimus”), a Texas resident incarcerated in Kentucky,

under 18 U.S.C. § 2255(a),1

 alleging that Bredimus is liable for

 

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section 2241(c), 2242, 2243, 2251, 2251A,

2252, 2252A, 2260, 2421, 2422, or 2423 of this

title and who suffers personal injury as a

result of such violation may sue in any

appropriate United States District Court and

shall recover the actual damages such minor

sustains and the cost of the suit, including a

reasonable attorney’s fee. Any minor as

described in the preceding sentence shall be

deemed to have sustained damages of no less

than $50,000 in value.

2

18 U.S.C. § 2241(c):

Whoever crosses a State line with intent to

engage in a sexual act with a person who has

not attained the age of 12 years . . . shall

be fined under this title, imprisoned for any

term of years or life, or both.

3

18 U.S.C. § 2251(c):

(1) Any person who, in a circumstance

described in paragraph (2), employs, uses,

persuades, induces, entices, or coerces any

minor to engage in, or who has a minor assist

any other person to engage in, any sexually

explicit conduct outside of the United States,

its territories or possessions, for the

purpose of producing any visual depiction of

such conduct, shall be punished as provided

under subsection (e). (2) The circumstance

referred to in paragraph (1) is that– (A) the

person intends such visual depiction to be

transported to the United States, its

territories or possessions, by any means,

including by computer or mail; or (B) the

person transports such visual depiction to the

United States, its territories or possessions,

by any means, including by computer or mail.

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injuring Doe in 2001 at a Thailand hotel by engaging with him in

non-consensual sexual acts, which Bredimus videotaped. Boonma

asserts that Bredimus violated 18 U.S.C. § 2241,2

 which prohibits

crossing a state line with intent to engage in a sexual act with a

person under age 12; 18 U.S.C. § 2251,3 which prohibits production

 

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4

18 U.S.C. § 2423(b):

A person who travels in interstate commerce or

travels into the United States, or a United

States citizen or . . . who travels in foreign

commerce, for the purpose of engaging in any

illicit sexual conduct with another shall be

fined under this title or imprisoned not more

than 30 years, or both.

18 U.S.C. § 2423(c):

Any United States citizen . . . who travels in

foreign commerce, and engages in any illicit

sexual conduct with another person shall be

fined under this title or imprisoned not more

than 30 years, or both.

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or distribution of child pornography; and 18 U.S.C. § 2423,4

 which

prohibits traveling in interstate or foreign commerce for the

purpose of engaging in illicit sexual conduct; and that he is

liable for intentional infliction of emotional distress. Bredimus

moves to dismiss this action based on forum non conveniens.

II

Under the federal doctrine of forum non

conveniens, when an alternative forum has

jurisdiction to hear [a] case, and 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, the court may, in the exercise

of its sound discretion, dismiss the case,

even if jurisdiction and proper venue are

established. 

Am. Dredging Co. v. Miller, 510 U.S. 443, 447-48 (1994) (internal

quotations omitted) (quoting Piper Aircraft Co. v. Reyno, 454 U.S.

235, 241 (1981)). The doctrine of forum non conveniens applies “in

 

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all cases regardless of their jurisdictional bases or subject

matter.” In re Air Crash Disaster Near New Orleans, La., 821 F.2d

1147, 1163 (5th Cir. 1987) (en banc) (emphasis omitted), vacated on

other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez, 490

U.S. 1032 (1989), opinion reinstated in part on other grounds, 883

F.2d 17 (5th Cir. 1989) (en banc) (per curiam). The court

exercises its discretion based on consideration of private and

public factors that trace their origin to Gulf Oil Corp. v.

Gilbert, 330 U.S. 501, 508-09 (1947). Showing some deference to

the plaintiff’s choice of forum, the court must consider the

following private interest factors: 

[1] the relative ease of access to sources of

proof; [2] availability of compulsory process

for attendance of unwilling, and the costs of

obtaining attendance of willing, witnesses;

[3] probability of view of premises, if view

would be appropriate to the action; and [4]

all other practical problems that make trial

of a case easy, expeditious and inexpensive.

There may also be questions as to the

enforc[ea]bility of a judgment if one is

obtained.

Robinson v. TCI/US W. Communications, Inc., 117 F.3d 900, 908 (5th

Cir. 1997) (quoting Air Crash, 821 F.2d at 1162); see also Am.

Dredging, 510 U.S. at 448. The public interest factors include (1)

the administrative difficulties courts face when litigation is

piled up in congested centers instead of being handled at its

origin; (2) the burden of jury duty imposed upon the people of a

community that has no relation to the litigation; (3) in cases that

touch the affairs of many persons, the interest in holding the

trial in their view and reach rather than in remote parts of the

 

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country where they can learn of it by report only; (4) the local

interest in having localized controversies decided at home; and (5)

the appropriateness of having the trial of a diversity case in a

forum that is at home with the state law that must govern the case,

rather than having a court in some other forum untangle problems in

conflict of laws, and in law foreign to itself. Am. Dredging, 510

U.S. at 448-49 (quoting Gulf Oil, 330 U.S. at 508-09).

This court must follow a controlling procedural framework in

applying the principles of forum non conveniens so that it

exercises structured discretion. See Air Crash, 821 F.2d at 1165.

The court first decides whether an available and adequate forum

exists. Id. A foreign forum is available if “the entire case and

all parties can come within the jurisdiction of that forum.” Id.

A defendant’s submission to the jurisdiction of an alternative

forum renders that forum available for the purposes of forum non

conveniens analysis. Veba-Chemie A.G. v. M/V Getafix, 711 F.2d

1243, 1245 (5th Cir. 1983). A foreign forum is adequate if “the

parties will not be deprived of all remedies or treated unfairly,

even though they may not enjoy the same benefits as they might

receive in an American court.” Air Crash, 821 F.2d at 1165

(citations omitted). If the available remedy is “so clearly

inadequate or unsatisfactory such that it is no remedy at all,”

however, this can be given “substantial weight” by the court. Id.

at 1164 n.27 (citing Piper, 454 U.S. at 254). If the court

concludes the foreign forum is both available and adequate, it must

then address the relevant factors of private interest, giving

 

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appropriate deference to plaintiff’s initial choice of forum. Id.

at 1165. The strong presumption in favor of plaintiff’s choice of

forum applies with less force, and is given less deference, when

the plaintiff is foreign. Piper , 454 U.S. at 255-56 (“When the

home forum has been chosen, it is reasonable to assume that this

choice is convenient. When the plaintiff is foreign, however, this

assumption is much less reasonable. Because the central purpose of

any forum non conveniens inquiry is to ensure that the trial is

convenient, a foreign plaintiff’s choice deserves less

deference.”). If the court determines that the private interests

do not weigh in favor of dismissal, it must then consider the

public interest factors. Air Crash, 821 F.2d at 1165.

Bredimus has the burden of establishing that the doctrine of

forum non conveniens applies. See Robinson, 117 F.3d at 907. His

“burden of persuasion runs to all the elements of the forum non

conveniens analysis.” Air Crash, 821 F.2d at 1164. While the

burden is on the movant to establish that an alternative forum

would be clearly more convenient, he need not submit overlydetailed affidavits, such as those that identify all the witnesses

he would call and the testimony he would offer. See Piper, 454

U.S. at 258. The forum non conveniens motion is made “precisely

because many crucial witnesses are located beyond the reach of

compulsory process, and thus are difficult to identify or

interview,” such that “[r]equiring extensive investigation would

defeat the purpose of [the] motion.” Id. Of course, the movant

must provide “enough information to enable the District Court to

 

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balance the parties’ interests.” Id. The court must review the

motion in light of the status of the case at the time the motion

was filed. See Air Crash, 821 F.2d at 1166.

Bredimus contends this case involves conduct that occurred

exclusively in Thailand, that an adequate alternative forum is

available in Thailand, and that the private interest factors,

particularly ease of access to evidence and availability of

witnesses, and public interest factors, including the interest of

a Thailand court in hearing localized controversies and the problem

of an American court applying unfamiliar Thailand law, make

Thailand a more convenient forum. Boonma responds that dismissal

of this case would thwart Congress’ intent in enacting 18 U.S.C. §

2255, which provides a civil remedy to victims of child sex tourism

and other sexual offenses. She also argues that dismissal would

frustrate the public policy of holding sex offenders accountable

and deterring similar conduct by others.

III

The court first considers whether Thailand is an available and

adequate forum. Bredimus contends the forum is available because

he has stipulated to the jurisdiction of Thailand courts and Boonma

resides there. The case and all parties involved can thus come

within the jurisdiction of the Thailand forum. Bredimus posits

that the forum is adequate because Thailand law recognizes causes

of action for injuries to one’s life, body, health, or rights, and

the right to sue for intangibles, such as emotional distress, loss

of consortium, and pain and suffering. Thailand law does not,

 

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5

Bredimus is presently incarcerated in a federal prison in

Kentucky, which neither party mentions in questioning the

availability of an alternative forum in Thailand. His projected

release date is within the next 18 months, at which point it

appears he would be able to appear in court in Thailand. There

does not appear to be a problem concerning his ability to submit

to Thailand jurisdiction. Nor should there be a statute of

limitations problem if trial cannot proceed until Bredimus is

released, because Doe can sue any time within one year of reaching

the age of majority, which will not occur until long after Bredimus

is released.

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however, provide for punitive damages for the type of conduct that

Boonma alleges.

Boonma does not appear to address the availability or adequacy

of Thailand as a forum. Instead, she argues only that dismissal of

this action would violate Congress’ intent in enacting 18 U.S.C.

§ 2255, which was to create a civil remedy in United States courts

for foreign victims of child sex tourism, such as Doe.

Although a Thailand forum may not be as favorable to Boonma as

is this court, she will not be deprived of all remedies, nor is

there reason to think she will be treated unfairly. Because

Thailand can exercise jurisdiction over both Bredimus and Boonma,

and since neither will be deprived of all remedies or treated

unfairly, the court holds that Thailand is an available and

adequate forum.5

IV

The court now examines the private interest factors.

A

Bredimus contends that a Thailand forum would be more

convenient because of greater ease of access to the sources of

 

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proof. He asserts that all the relevant conduct in this case

occurred in Thailand, all witnesses, including the other alleged

victims, hotel employees, and medical providers, are in Thailand,

and all physical evidence and evidence of medical reports and

expenses is in Thailand. This is the extent of his argument that

a Thailand forum would be more convenient due to easier access to

sources of proof. Boonma does not appear to address the location

of the sources of proof.

Chief Judge Fish recently dismissed on the basis of forum non

conveniens another lawsuit brought by Bredimus’ other alleged

victims, which arises out of the same set of events. See Punyee ex

rel. Doe #1 v. Bredimus, 2004 WL 2511144 (N.D. Tex. Nov. 5, 2004)

(Fish, C.J.). In addition to the witnesses already mentioned,

Chief Judge Fish noted that other critical witnesses were also

located in Thailand, such as “the Thai national and local

authorities who investigated the incident[ ] [and] the alleged

procurers who ‘lured’ the children into Bredimus’s hotel room.”

Id. at *6. He also pointed out, however, that not every source of

proof supported Thailand as the more convenient forum. Id.

Apparently, some tangible and documentary evidence relevant to the

present case was transferred to the United States for use in

prosecuting Bredimus criminally. See id. According to the Punyee

plaintiffs, this evidence includes (1) a videotape that Bredimus

filmed while he engaged in sexually-explicit acts with the victims,

(2) the video camera and the digital camera Bredimus used while he

engaged in the sexually-explicit acts, (3) digital images and color

 

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copies of the images from the digital camera, (4) fingerprint

analysis results, (5) documents relating to Bredimus’ travel in

Thailand, and (6) documents relating to the Thailand police

investigation and court proceedings. Id. Although some evidence

was more readily available in the United States than in Thailand,

Chief Judge Fish held that the factor considering access to sources

of proof weighed in favor of dismissal, because “most of the

relevant information and key players, with the exception of

Bredimus, [were] located in Thailand.” Id.

Given that Boonma, all the non-party witnesses, and much of

the relevant physical and documentary evidence——particularly the

critical evidence relating to Doe’s damages——are located in

Thailand, this factor favors litigating the case there.

B

The court next considers the availability of compulsory

process for ensuring attendance of unwilling witnesses and the cost

of obtaining attendance of willing witnesses. Neither party has

briefed this issue thoroughly. As to unwilling witnesses, neither

party has identified any witnesses who would be within subpoena

range of this court. See Fed. R. Civ. P. 45(b)(2), (c)(3)(A)(ii),

and (c)(3)(B)(iii). The possible witnesses mentioned besides the

parties include the other victims, Thailand national and local

authorities, medical providers, and hotel employees, all of whom

are located in Thailand. The affidavit of Professor Chaninat Leeds

does not mention the power of Thailand courts to subpoena unwilling

witnesses located in Thailand, and neither party discusses whether

 

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these witnesses would be willing to testify.

The cost of obtaining attendance of willing witnesses points

strongly in favor of litigating this case in Thailand. Neither

party refers to any possible witnesses who reside in the United

States, other than the defendant. Bredimus asserts that it would

be extremely expensive to litigate this dispute in Texas because

all the potential witnesses are in Thailand. Although Bredimus

does not identify any of the potential witnesses already mentioned

by name, there is good reason to believe they all reside in

Thailand, so the cost of obtaining the attendance of these parties

should be far lower in Thailand than in Texas. Further, Thailand

law does not specifically authorize depositions, so it could be

difficult to obtain deposition testimony for use in this court

should it retain jurisdiction here. Boonma does not address this

issue in her brief.

Because of this court’s inability to compel attendance of

unwilling witnesses and the high cost of obtaining attendance of

willing witnesses, this factor favors litigating this dispute in

Thailand.

C

Because the factor that considers probability of view of the

premises is not relevant to this case, the court need not consider

it.

D

The court next evaluates all practical considerations of

efficiency and expense. Bredimus asserts that this factor favors

 

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the Thailand forum because any documentary evidence, including

reports from the Thailand police authorities, medical providers, or

hotel employees, would have to be translated into English for trial

in Texas. Boonma does not address this issue in her brief.

Because most of the documentary evidence is written in Thai, and

all witnesses except the defendant are Thai, this factor favors

litigating the case in Thailand.

E

The court holds that the private interest factors, viewed

together, weigh heavily in favor of litigating the case in

Thailand.

V

When the private interest factors do not weigh in favor of

dismissal, the court must consider the public interest factors.

Robinson, 117 F.3d at 908. Although the court is not obligated to

consider the public interest factors when the balance of private

interest factors favors dismissal, the court will do so. See Baris

v. Sulpicio Lines, Inc., 932 F.2d 1540, 1550-51 (5th Cir. 1991)

(holding that if private interest factors weigh in favor of

dismissal, no further inquiry need be made). “[E]ven when the

private conveniences of the litigants are nearly in balance, a

trial court has discretion to grant forum non conveniens dismissal

upon finding that retention of jurisdiction would be unduly

burdensome to the community, that there is little or no public

interest in the dispute or that foreign law will predominate if

jurisdiction is retained.” Air Crash, 821 F.2d at 1165-66 (quoting

 

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Pain v. United Techs. Corp., 637 F.2d 775, 792 (D.C. Cir. 1980)).

A 

The court first considers administrative difficulties arising

from congested courts. Neither party addresses this issue in the

briefs, and there is no indication in the record that this court is

more congested than is the Thailand court that would hear this

case. See Capital Currency Exch., N.V. v. Nat’l Westminster Bank

PLC, 155 F.3d 603, 611 (2d Cir. 1998) (holding that this factor

favored neither British nor American forum where there was no

indication in record that British courts are more or less congested

than American courts). Because Bredimus has the burden of showing

that this factor favors dismissal, the court holds that it supports

litigating the case in Texas.

B

The court next evaluates the burden of jury duty. “Jury duty

is a burden that ought not to be imposed upon the people of a

community which has no relation to the litigation.” Gulf Oil, 330

U.S. at 508-09. Texas jurors have little connection with the case

because the plaintiff is Thai and all the conduct occurred in

Thailand. See Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d

665, 673 n.10 (5th Cir. 2003) (citing Kamel v. Hill-Rom Co., 108

F.3d 799, 804-05 (7th Cir. 1997) (noting that Indiana residents

have “a mere passing interest” where a foreign plaintiff is injured

in a foreign land)). Because it involves criminal conduct by a

Texas resident, Texas jurors have some interest in the case, but it

is no more than the “little” public interest to which Air Crash

 

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refers. See Air Crash, 821 F.2d at 1166. This factor therefore

favors litigating the case in Thailand.

C 

The court turns next to the interest of holding the trial

within the view and reach of those persons whose affairs it

touches. The case touches the affairs of many Thailand citizens,

including the other victims and their parents, the Thailand

national and local authorities who investigated the incident, and

the employees of the hotel where the conduct occurred. By

contrast, this incident marginally touches the affairs of persons

in the United States except the defendant. This factor therefore

heavily favors litigating the case in Thailand.

D

The court next addresses the interest in having localized

controversies decided at home. There is a strong connection

between the case and Thailand because the victim is Thai and all

the conduct occurred in that country. Predatory sexual behavior

directed at Thailand children is obviously a problem that Thailand

has a strong interest in combating. See Vasquez, 325 F.3d at 673

& n.10 (holding that country where plaintiff hails from and

suffered injury has obvious interest in protecting rights and

welfare of its citizens). The only connection between the case and

Texas is that the defendant is a Texas resident (although he is

currently incarcerated in Kentucky). Although Texas has an

interest in deterring its citizens from committing sex crimes

abroad, Thailand’s interest in this case is considerably stronger.

 

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See Punyee, 2004 WL 2511144 at *8 (“[w]here aircraft accident

occurred in a foreign country and victims were all citizens of that

country, and only the aircraft manufacturer and propeller

manufacturer were American citizens, foreign forum had a ‘very

strong interest’ in the case” (citing Piper, 454 U.S. at 260)).

This factor therefore favors litigating the case in Thailand.

E

The court finally considers the avoidance of unnecessary

problems in conflicts of law and the application of foreign law.

Because Boonma asserts both federal statutory and state-law claims,

this court would be required to apply two different sets of choiceof-law provisions to determine the law that applies. Were the

court’s jurisdiction based solely on diversity of citizenship, it

would apply the choice-of-law rules of Texas, the state in which it

sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496

(1941). In federal question cases such as this one, however, the

court must apply federal common law choice-of-law rules to

determine what substantive law applies to the claims arising under

federal statutes. See Corporacion Venezolana de Fomento v. Vintero

Sales Corp., 629 F.2d 786, 795 (2d Cir. 1980). The Erie and Klaxon

principles still apply to pendent state-law claims in cases in

which federal jurisdiction is premised on a federal statute, so the

court must apply the choice-of-law rules of the state in which it

sits to determine the substantive law that applies to Boonma’s

claim for intentional infliction of emotional distress. See Amoco

Chem. Co. v. Tex Tin Corp., 925 F. Supp. 1192, 1202 n.9 (S.D. Tex.

 

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1996) (citing Doty v. Sewall, 908 F.2d 1053, 1063 (1st Cir. 1990)

(noting “it is well settled” that Erie applies to pendent claims

asserted in federal question cases)).

 Were this case tried in Texas, Thailand law would likely apply

to the claim for intentional infliction of emotional distress. To

resolve choice-of-law questions, Texas courts apply the “most

significant relationship” test set out in Restatement (Second)

Conflict of Laws §§ 6 and 145. See Duncan v. Cessna Aircraft Co.,

665 S.W.2d 414, 420-21 (Tex. 1984) (“[I]n all choice of law cases,

except those contract cases in which the parties have agreed to a

valid choice of law clause, the law of the state with the most

significant relationship to the particular substantive issue will

be applied to resolve that issue.”). The factors the court

considers include (1) the needs of the interstate and international

systems, (2) the relevant policies of the forum, (3) the relevant

policies of other interested states and the relative interests of

those states in the determination of the particular issue, (4) the

protection of justified expectations, (5) the basic policies

underlying the particular field of law, (6) certainty,

predictability, and uniformity of result, and (7) ease in the

determination and application of the law to be applied.

Restatement (Second) Conflict of Laws § 6(2) (1971). The contacts

to be considered in applying these principles include (1) the place

where the injury occurred, (2) the place where the conduct causing

the injury occurred, (3) the domicile, residence, nationality,

place of incorporation, and place of business of the parties, and

 

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(4) the place where the relationship, if any, between the parties

is centered. Id. § 145(2).

Applying this test, Thailand clearly has the most significant

relationship to this case. Cf. Punyee, 2004 WL 2511144, at *8. Of

the relevant contacts, the injury and conduct occurred in Thailand,

and the relationship between the parties is centered there. The

residence of the parties does not favor either Texas or Thailand

because one party resides in each forum. Looking to the principles

that the court’s choice of law should further, it is clear that

Thailand has a stronger policy interest in the case: that of

protecting its children from sex crimes. In Punyee Chief Judge

Fish noted the incentive that these victims have to sue in Texas

due to the availability of punitive damages awards under Texas law.

Id. at *9. He also pointed out, however, that “[w]ere the court to

apply Texas law as a means of righting any perceived inequities of

Thai law, it would be treading upon the policy choices the Thai

government has made in the competing objectives and costs of tort

law.” Id.; see also Vasquez, 325 F.3d at 675 & n.14 (holding that

application of Texas law, where there was little justification for

doing so to right any perceived inequities in Mexico’s disparate

provision of wrongful death damages, would undercut policy decision

made by the Mexican people through their duly-elected lawmakers).

Punyee held that applying Thailand law would promote “[u]niformity

and accommodation of the competing policies of the two nations.”

Punyee, 2004 WL 2511144, at *9; see also Vasquez, 325 F.3d at 675

(“Uniformity, predictability, and accommodation of the competing

 

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policies of the two nations favor applying Mexican law.”). 

Without deciding whether the determination of damages and fees

under the federal statutory claims would be governed by Thailand or

federal common law, the court can conclude that this public

interest factor favors litigating this case in Thailand. If

Thailand law applies, the court will be applying foreign law to all

the claims. The need to apply foreign law points toward dismissal.

Piper, 454 U.S. at 260 & n.29 (citing decisions holding that need

to apply foreign law, although not conclusive, favors dismissal).

If federal common law applies, and if it does not dictate that the

court follow Thailand law, then two different sets of substantive

law would apply in the same case, a problem that Piper recognized.

See id. at 260 (holding that district court properly considered

that trial involving two sets of laws would be confusing to jury).

If the case were tried in Thailand, the Thailand court would apply

its own law under its conflict of law rules.

The court therefore holds that this factor favors litigating

the case in Thailand.

VI

The court now addresses Boonma’s argument that dismissal of

this case on the grounds of forum non conveniens would frustrate

Congress’ intent to provide foreign victims of illicit sexual

conduct a civil remedy in United States district courts. Boonma

correctly points out that Congress is presumed to be aware of

existing law when it enacts legislation. See Miles v. Apex Marine

Corp., 498 U.S. 19, 32 (1990). She argues that, because Congress

 

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intended to provide sex crime victims, such as her son, with a

civil remedy, and because Congress is presumed to have been aware

of the doctrine of forum non conveniens, it must have intended to

abolish the doctrine in this context. The court disagrees. 

Absent a clear Congressional manifestation of contrary intent,

when a court construes a newly-enacted or revised statute, it

presumes that the law is harmonious with existing law. See

Midlantic Nat’l Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 494,

501 (1986) (“The normal rule of statutory construction is that if

Congress intends for legislation to change the interpretation of a

judicially created concept, it makes that intent specific.”

(citation omitted)); United States v. Langley, 62 F.3d 602, 605

(4th Cir. 1995). Boonma points to no clear Congressional intent to

abolish the doctrine of forum non conveniens in the present

context.

Neither would dismissal of this case on forum non conveniens

grounds implicitly violate Congressional intent by rendering § 2255

a nullity. Boonma selectively quotes passages from 18 U.S.C.

§ 2423 that prohibit travel in foreign commerce for the purpose of

engaging in illicit sexual conduct to argue that § 2255, which

provides a civil remedy for violations of § 2423, would be

meaningless if the cases of foreign plaintiffs could be dismissed

based on forum non conveniens. This assertion depends on the

faulty assumptions that many, if not all, plaintiffs who sue under

§ 2255 are foreign and that many, if not all, cases brought by

foreign plaintiffs will be dismissed on forum non conveniens

 

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grounds.

Boonma begins by asserting that, by definition, the sexual

abuse covered by § 2255, and specifically by § 2423, occurs

overseas, and that the victims it is meant to protect are “without

exception foreign children.” P. Br. at 1. The court disagrees.

Section 2255 provides a civil remedy for victims of a number of

different sexual offenses, under statutes that prohibit a wide

array of conduct by those traveling in interstate or foreign

commerce or located in areas of federal jurisdiction, such as those

within maritime or territorial jurisdiction or within a federal

prison. See 18 U.S.C. §§ 2255, 2241(c), 2242, 2243, 2251, 2251A,

2252, 2252A, 2260, 2421, 2422, and 2423. Further, § 2423, the

statute upon which Boonma relies, prohibits not only United States

citizens traveling in foreign commerce, but also persons traveling

in interstate commerce or traveling into the United States, from

engaging in illicit sexual conduct. See 18 U.S.C. § 2423(b).

Boonma does not support her contention that victims of offenses for

which § 2255 provides a civil remedy are necessarily all, or even

mostly, foreign children.

Nor does it follow that the suits of all foreign plaintiffs

who sue under § 2255 will be subject to dismissal based on the

doctrine of forum non conveniens. For instance, a foreign

plaintiff’s home forum might not provide a cause of action for the

conduct alleged, or the available remedy might be so inadequate

that it could not be considered a remedy at all, in which case the

plaintiff’s case would not be dismissed. See supra § II. Indeed,

 

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dismissal on forum non conveniens grounds is conditioned upon the

existence of an adequate and available alternative forum, see id.,

so there is nothing inconsistent about Congress’ intending to

ensure that juvenile victims of sex crimes, including foreign

victims, have a private cause of action, while preserving the

doctrine of forum non conveniens in this context.

The court therefore declines to accept the argument that

Congress intended to abolish the doctrine of forum non conveniens

in this context by providing a cause of action under § 2255.

VII

The court now considers Boonma’s contention that public policy

dictates that the court retain jurisdiction. Boonma asserts that

the Protection of Children from Sexual Predators Act of 1998, Pub.

L. No. 105-314, 112 Stat. 2974 (1998), which expanded the number of

sex crimes for which victims could seek a civil remedy, and the

Prosecutorial Remedies and Other Tools to End the Exploitation of

Children Today Act, Pub. L. No. 108-21, 117 Stat. 650 (2003), which

strengthened criminal penalties against offenders, as well as

comments by the President and Secretary of State, evidence

increased public concern to defeat the international sexual

exploitation of children and hold sexual predators accountable.

Boonma maintains that dismissing this case would clearly disregard

United States public policy expressed by Congress and the Executive

Branch.

Although the court recognizes that Congressional enactments

and Administration policy evidence the intent to combat sex crimes

 

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against minors, it is not clear that dismissing this case in

deference to a Thailand forum will thwart that intent. Dismissal

on forum non conveniens grounds is conditioned on the existence of

an adequate and available alternative forum. See supra § II.

Where, as here, there is such a forum, the policy of deterring

sexual exploitation of minors by holding them financially

accountable will be served, regardless whether the court retains

jurisdiction over this case.

The court therefore finds unpersuasive Boonma’s argument that

dismissal of this case would contravene public policy.

VIII

Having considered both the private and public interest

factors, the court holds that Bredimus has made the strong showing

necessary to justify dismissing this case on grounds of forum non

conveniens, because the balance of convenience tilts strongly in

favor of litigating the case in Thailand. Thailand is an available

and adequate forum. The private interest factors, particularly the

location of evidence and the cost of obtaining attendance of

witnesses, indicate that Thailand is clearly the more convenient

forum. In addition, the public interest factors favor litigating

this dispute in Thailand. Although there is no evidence of a

relatively greater administrative burden in this court than in

Thailand, there is strong evidence that the nexus of the case is in

Thailand. Boonma is Thai, all the conduct that gives rise to the

case occurred in Thailand, the people of Thailand have a

considerably stronger interest in the outcome of the case than do

 

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those of Texas, and Thailand law would apply at least to one of

Boonma’s claims, even if this court retained jurisdiction. The

only connection to Texas is that the defendant, who is now

incarcerated in Kentucky, was a Texas resident at the time he was

traveling abroad in Thailand.

Additionally, to deny defendant’s motion to dismiss based on

forum non conveniens, this court would be required to disagree

explicitly with Chief Judge Fish’s assessment in Punyee of the

factors that apply in very similar circumstances. The court is

quite hesitant to do so under the circumstances presented here,

where the availability and adequacy of an alternative forum, as

well as the relevant public and private interest factors, are

essentially identical in each case. Were the court to deny the

motion to dismiss, the plaintiff in this case would be allowed to

litigate in her chosen forum whereas the plaintiffs in Punyee would

be required to litigate in Thailand, despite the essentiallyidentical factual scenarios presented by the two cases. 

IX

Because the court has decided in favor of dismissal, it must

include a return jurisdiction clause in its dismissal order to

ensure that the “plaintiff can reinstate [her] suit in the

alternative forum without undue inconvenience or prejudice and that

if the defendant obstructs such reinstatement in the alternative

forum that the plaintiff may return to the American forum.” Air

Crash, 821 F.2d at 1166; see Baris, 932 F.2d at 1551-52. Today’s

judgment of dismissal is conditioned on Bredimus’ timely submitting

 

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to service of process and jurisdiction in the appropriate Thailand

forum upon Boonma’s filing suit, waiving any statute of limitations

defense that did not exist before Boonma filed this lawsuit on

April 5, 2005 (provided Boonma files suit in an appropriate

Thailand forum within 120 days from the date of judgment), making

available for the Thailand court proceedings all relevant documents

and witnesses within his control, and agreeing that any final

judgment rendered by the court of Thailand is entitled to full

faith and credit in the courts of the United States. See Baris,

932 F.2d at 1551 (holding that district court may determine the

conditions of dismissal). Boonma may move this court to reinstate

this action in the event Bredimus seeks to evade the jurisdiction

of the Thailand courts or to interpose a limitations defense.

* * *

Defendant’s May 9, 2005 motion to dismiss on grounds of forum

non conveniens is granted.

SO ORDERED.

July 29, 2005.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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