[ PUBLISH ]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 12663

________________________ D.C. Docket No. 1:16

- cv - 20725

- DPG

OTTO CANDIES, LLC, et al.,
Plaintiffs

- Appellants,

versus CITIGROUP, INC.,
Defendant

- Appellee.

_____________________ ___ Appeal from the United States District Court for the Southern District of Florida

________________________ (July 1, 2020) Before JORDAN and NEWSOM, Circuit Judges, and HALL, ∗ District Judge. JORDAN, Circuit Judge :

∗ Honorable James Randal Hall, Chief United States District Judge for the Southern District of Georgia, sitting by designation.

Case: 18-12663 Date Filed: 07/01/2020 Page: 1 of 462 Two American plaintiffs. Thirty

- seven foreign pl aintiffs. One American defendant. A fraudulent scheme allegedly taking place here and in Mexico , with the American defendant allegedly engaging in fraudulent activity in the United States. Assumptions, but no evidence, about where the key documents and witnesses are
located. The district court, faced with this paradigm , granted the American defendant’s
motion to dismiss for forum non conveniens

. After reviewing the record, and with the benefit of oral argument, we reverse and remand for further proceedings . First, the district court mistakenly gave only “reduced” deference to the American plaintiffs’ choice of forum. Second, the American defendant

— which had the burden of persuasion

— did not support its claims that most of the releva nt documents and
witnesses are located in Mexico.
I
In reviewing a motion to dismiss for forum non conveniens , we accept as true the factual allegations in the complaint to the extent they are uncontroverted by
affidavits or other evidence , or have not been challenged in the context of an evidentiary hearing . We also draw all reasonable inferences in favor of the plaintiff s . See Delong Equip. Co. v. Washington Mills Abrasive Co. , 840 F.2d 843, 845 (11th Cir. 1988) (reviewing Rule 12(b) motions to dismiss for ineffective service of
process , lack of personal jurisdiction , and improper venue )

. See also Shi v. New

Case: 18-12663 Date Filed: 07/01/2020 Page: 2 of 463 Mighty U.S. Tr. , 918 F.3d 944, 948 (D.C. Cir. 2019) (accepting the plaintiffs’ allegations of facts as tr ue on a motion to dismiss for forum non conveniens ) ; Aguas Lenders Recovery Grp. v. Suez, S.A. , 585 F.3d 696, 697 (2d Cir. 2009) (explaining
that , on appeal from a forum non conveniens dismissal without a factual hearing, the court accepts the plaintiff ’ s facts as true)

. The following facts are taken from the plaintiffs’ amended complaint and have not been contested by affidavit s o r other
evidence

. We set them out in detail because of their importance.
A Oceanografía S.A. de C.V. , a now - bankrupt Mexican company , provided oil drilling services to Petròleos Mexicanos S.A. (“Pemex” for short) , Mexico’s state

owned oil and gas company

. Grupo Financiero Banamex S.A. de C.V. (the “Banamex Group”) is a wholly owned subsidiary of Citigroup and ha s its principal place of business in Mexico. Banco Nacional de México, S.A. (“Banamex” for short) , also based in Mexico , is a wholly owned subsidiary of the Banamex Group

. Banamex is therefore an indirect subsidiary of Citigroup. In 2008, Citigroup established credit facilities within Banamex to provide cash advances to Oceanografía and fund its operations with Pemex

. A division of Citigroup based in New York , called t he Institutional Client s Group , was responsible for developing and overseeing the credit facilities, and Citigroup supervised the entire arrangement. In exchange for the cash advances, Citigroup charged

Case: 18-12663 Date Filed: 07/01/2020 Page: 3 of 464 Oceanografía a high interest rate and obtained the right to collect repayment direct ly
from Pemex. Because Pemex is state

- owned ( and perhaps unlikely to default ) , Citigroup’s credit facility was profitable and low risk

. Citigroup increased its cash
advances on several occasions , bloating Oceanografía with debt up to half of its
annual net revenues and far exceeding the value of the underlying Pemex contracts. Citigroup was aware that Oceanografía was overleveraged because Oceanografía sent audited financial statements and documents detailing its operation al and financial condition

. F or each increase of the credit facility, Citigroup prepared a memorandum based on credit application forms that Oceanografía provided

. The forms included work estimates for the Pemex contracts , as well as Pemex’s signed authorization s , and were supposed to be subject to Citigroup’s internal review procedures. Citigroup did not perform the review procedures, however, and granted advances knowing they were based on authorization documents with forged Pemex signatures. Citigroup saved Oceanografía ’s credit forms to its internal network

. B ecause Citigroup and Oceanografía communicated directly through Citigroup’s servers in the United States, the falsified P emex documents and related communications are also located in the United States and are in Citigroup’s possession. Several Citigroup employees who oversaw the program and approv ed the cash advances are (or were)
located in Miami and New York.

Case: 18-12663 Date Filed: 07/01/2020 Page: 4 of 465 Citigroup knew about Oceanografía ’s unstable financial condition not only through the cash advance program, but also because it became intimately involved
in other aspects of Oceanografía ’s business . Citigroup acted as the trustee and paying agent on Oceanografía ’s 2008 bond issuance, advised Oceanografía on plans to acquire assets , represented the company in pursuing investors, and supervised the
creation of payment trusts for the benefit of its trade creditors. In 2014, the Mexican government discovered that Oceanografía had failed to provide insurance policies for its Pemex contracts and banned it from executing new contracts with Pemex. T he government then learned of the cash advance scheme
and investigated further. Mexican banking regulator s found that ten Citigroup employees had violated Mexican criminal law s , and Mexican authorities pursued charges against Citigroup employees for causing Banamex to violate banking laws

. T he scandal began to unfold in Mexico but reverberated in the United States. It prompted Citigroup to conduct an internal review of its cash advance program , and Samuel Libnic, based in Miami as Citigroup’s head of legal matters for Latin America, led the project with support from at least one other Miami

- based employee

. Citigroup publicly admitted that some its employees had been criminally involved
in the fraudulent scheme and announced that it had terminated employees both
“inside and outside” of Mexico.

Case: 18-12663 Date Filed: 07/01/2020 Page: 5 of 466 The scandal also led the SEC and the Justice Department to open domestic investigations into Citigroup

. Citigroup disclosed the se investigation s in its SEC annual report , stating that the y had “included requests for documents and witness testimony.” Several plaintiffs have now filed civil actions in the United States
related to the fraudulent scheme.
B In this case, t hirty

- nine plaintiffs

— two American and thirty

- seven foreign

— sued Citigroup (and only Citigroup) in federal court. They claim that the fraudulent cash advances lured them into investing in or contracting with Oceanografía and that “Citigroup and/or Oceanografía ” knowingly misrepresented Oceanografía ’s financial stability

. They assert substantive and conspiracy claims under the RICO Act, 18 U.S.C. §§ 1962(c)

– (d), as well as state

- law claims for fraud, aiding and abetting fraud, conspiring to commit fraud, and breach of fiduciary duty. The plaintiffs allege that some of the mis re presentations were made during meetings in
the United States , on telephone calls to and from the United States , in emails located

on servers in the United States , and in written materials reviewed, revised , or approved by Citigroup personnel in the United States

. Some of the plaintiffs are shipping companies which leased vessels to Oceanografía . They allege that Citigroup’s fraudulent misrepresentations and
omissions induced them to transact with Oceanografía while it was financially

Case: 18-12663 Date Filed: 07/01/2020 Page: 6 of 467 unstable, causing them to lose substantial amounts of money on their leases. One of
those shipping lessors, Otto Candies, LLC, is a citizen of the United States and allege s that it received fraudulent communications i n Louisiana

. Another group of plaintiffs comprise s Oceanografía bondholders . They claim that Citigroup’s fraudulent misrepresentations and omissions induced them to purchase Oceanografía bonds issued in the United States on which Oceanografía eventually defaulted. One of th os e bondholders, Waypoint Asset Management LLC, is an investment company based in the United States . It acquired bonds in part based

on allegedly fraudulent communications made in New York

. Citigroup moved to dismiss the original complaint for forum non conveniens or, in the alternative, under Rules 9(b) and 12(b)(6) of the Federal Rules of Civil
Procedure

. In response, the plaintiffs moved for limited discovery concerning factual allegations that Citigroup had made in its motion

— namely, that all of the
witnesses and evidence germane to the claims are located in Mexico , that the cash advance contracts were negotiated and executed in Mexico, and that none of the alleged misconduct took place in the United States. The plaintiffs argued that Citigroup’s assertions contradicted or misrepresented the allegations in the complaint or were not supported by evidence. Citigroup opposed discovery, arguing
that its grounds for forum non conveniens dismissal were based entirely on information in the complaint

. The district court denied the plaintiffs’ motion ,

Case: 18-12663 Date Filed: 07/01/2020 Page: 7 of 468 concluding that the plaintiff s failed to establish good cause for discovery and that
the ir requests were overbroad. The plaintiffs then filed an amended complaint , and Citigroup again moved to
dismiss on the same grounds

. The district court hear d argument and granted Citigroup’s motion to dismiss for forum non conveniens.
II
Forum non conveniens , a common law doctrine , provides that a district court has inherent power to decline to hear a case in which there is proper jurisdiction and

venue . See Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 507 (1947)

. It is a flexible tool , used to prevent litigation that would “establish oppressiveness and vexation to a defendant out of all proportion to [the] plaintiff ’ s convenience ” or that is unsuitable
for the domestic forum because of “ the court ’ s own administrative and legal problems .” Piper Aircraft Co. v. Reyno , 454 U.S. 235, 241 (1981) ( quoting Koster v. Lumbermens Mut. Cas. Co. , 330 U.S. 518, 524 (1947)) (alterations omitted)

. Because t he plaintiff ’ s forum choice “ should rarely be disturbed ,” Gulf Oil , 330 U.S. at 508 , a forum non conveniens dismissal is subject to three conditions

. First, as a threshold matter, a court should not dismiss an action for forum non
conveniens unless there is an adequate and available alternative forum. See Leon v. Millon Air, Inc. , 251 F.3d 1305, 13 10

– 11 (11th Cir. 2001)

. Second, the balance of
the relative private and public interests must weigh in favor of dismissal to justify

Case: 18-12663 Date Filed: 07/01/2020 Page: 8 of 469 invocation of the doctrine. See id. Private interests include the parties’ relative ease of access to sources of proof, access to witnesses, ability to compel testimony, the possib ility of view ing the premises, and the enforceability of a judgment. See Gulf Oil , 330 U.S. at 508

. P ublic interests include a sovereign ’s interests in deciding the dispute, the administrative burdens posed by trial, and the need to apply foreign law. See id

. at 508

– 09. Third , the plaintiffs must be able to reinstate their suit in the
alternative forum without undue in convenience or delay

. See Leon , 251 F.3d at 13 10

– 11

. “A defendant has the burden of persuasion as to all elements of a forum
non conveniens motion[.]” Id. at 1311. 1 With respect to the private interest s , courts begin with the presumption that a domestic plaintiff has chosen a sufficiently convenient forum , and it is therefore incumbent upon the defendant “ to prove vexation and oppressiveness that are out of all proportion to the plaintiff ’ s convenience. ” Id. at 1314 ( internal quotation marks
and citation omitted ). A defendant invoking forum non conveniens with respect to a domestic plaintiff therefore “bears a heavy burden in opposing the plaintiff’s
chosen forum.” Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp. , 549 U.S. 422, 430 (2007). T he defendant must offer “ positive evidence of unusually extreme

1 The district court concluded that Mexico was an adequate and available alternative forum, and that the plaintiffs would not be subject to undue inconvenience or delay if they had to refile there. The plaintiffs do not challenge these conclusions on appea l, so we do not address them further. Case: 18-12663 Date Filed: 07/01/2020 Page: 9 of 4610 circumstances , ” and the district court must be “ thoroughly convinced that material injustice is manifest b efore exercising any such discretion as may exist to deny a United States citizen access to the courts of this country

. ” SME Racks, Inc. v.
Sistemas Mec á nicos Para Electró nica , 382 F.3d 1097, 110 1 (11th Cir. 2004) (quoting Burt v. Isthmus Dev. Co. , 218 F.2d 353, 357 (5th Cir. 1955) )

. Foreign plaintiffs are also entitled to a presumption in favor of their forum choice, albeit a presumption that “ applies with less force .” Sinochem Int’l , 549 U.S.

at 4 30 (quoting Piper Aircraft , 454 U.S. at 255

– 56 )

. R educed deference is “not an invitation to accord a foreign plaintiff ’ s selection of an American forum no deference
since dismissal for forum non conveniens is the exception rather than the rule.” Lacey v. Cessna Aircraft Co. , 862 F.2d 38, 45

– 46 (3d Cir. 1988) ( citation omitted )

. Accord R. Maganlal & Co. v. M.G. Chem. Co. , 942 F.2d 164, 168 (2d Cir. 1991)

. 2
We review a forum non conveniens dismissal for abuse of discretion, recognizing that a district court has wide latitude to assess the relevant private and public interest factors. See Piper Aircraft , 454 U.S. at 257 . We may reverse when the district court makes a clear error of judgment or applies the wrong legal standard ,

2 The initial presumption is an important mooring for an otherwise flexible doctrine. See Simon v. Republic of Hungary , 911 F.3d 1172, 1182 (D.C. Cir. 2018) (“The forum non conveniens doctrine comes with ground rules. The starting point is a strong presumption in favor of the plaintiff’s choice of the forum in which to press her suit.”); 14D Charles Alan Wright , Arthur R. Miller, Edward H. Cooper , & Richard D. Freer, Federal Practice a nd Procedure § 3828 (4th ed. 2013) (“Without knowing the level of deference to accord the plaintiff’s choice of forum, it is not clear how one would assess whether the Gulf Oil factors outweigh the plaintiff’s choice.”) (italics added)

. Case: 18-12663 Date Filed: 07/01/2020 Page: 10 of 4611 such as an incorrect presumption regarding the plaintiff’s forum choice

. See SME Racks , 382 F.3d at 1102 (reversing forum non conveniens dismissal because the
district court “ failed to articulate the relevant standards and failed to apply any presumption in its analysis ”).
I II Before assessing the private and public interest factors in this case , the district

court acknowledged that the two American plaintiffs ordinarily would be entitled to a strong presumption in favor of their forum choice , whereas the remaining thirty

seven foreign plaintiffs would not be entitled to the same level of deference

. But
b ecause all the plaintiffs had decided to invest in Oceanografía , a Mexican company doing business in Mexico, the district court determined that the plaintiffs could not “feign surprise at potentially having to litigate a resulting dispute in Mexico

. ” It
therefore applied only a “ reduced ” deference to the two domestic plaintiffs ’ forum
choice , just as it did for the foreign plaintiffs

. This , we conclude, was incorrect

. A
The d eference owed to the forum choice of domestic plaintiffs can not be
reduced solely because they chose to invest in a foreign entity and may have expect ed to litigate abroad on certain matters

. Neither the Supreme Court nor the
Eleventh Circuit has adopted a “foreign investment” standard , and such a rule would
be in tension with existing precedent. After all , “ the central purpose of any forum

Case: 18-12663 Date Filed: 07/01/2020 Page: 11 of 4612 non conveniens inquiry is to ensure that the trial is convenient [

. ] ” Piper Aircraft , 454 U.S. at 256

. See also King v. Cessna Aircraft Co. , 562 F.3d 1374, 1383 (11th Cir. 2009) (“[T] he appropriate inquiry is indeed convenience. ”).
A c ourt begin s with the reasonable assumption that “[w] hen the plaintiff has
chosen the home forum

. . . th is choice is convenient .” Piper Aircraft , 454 U.S. at 2 55

– 56

. T hat a plaintiff invested in a foreign entity or country does not mean that
the chosen domestic forum will be inconvenient , or even that it should be presumed
to be inconvenient

. I t is possible that the most significant events giving rise to the plaintiff’s claim s took place in the United States or that most of the relevant
documents or witnesses would be located here , even though foreign investment is
involved

. See 14D Charles Alan Wright , Arthur R. Miller , Edward H. Cooper , &
Richard D. Freer , Federal Practice and Procedure § 3828 (4th ed. 2013 ) (“In some instances, controversies that at first blush appear to be foreign actually have a meaningful connection with the United States or its do mestic policies because there have been relevant transnational contacts.”)

. In short, investment in a foreign entity or country alone is not enough to dilute the threshold presumption that an American
citizen has chosen the most convenient forum. And

— e xcept where there is a valid
forum

- selection clause, s ee Atl. Marine Const r . Co. v. U.S. Dist. Court , 571 U.S. 49, 63 (2013)

— the plaintiff’s reasonable expectations are beside the point.

Case: 18-12663 Date Filed: 07/01/2020 Page: 12 of 4613 We acknowledge that at least one case support s th e proposition which the
district court applied and which Citigroup now urges us to adopt

. In EIG Energy Fund XIV, L.P. v. Petr ó leo Brasileiro S.A. , 246 F. Supp. 3d 52, 78 (D.D.C. 2017) , the district court discounted the presumption in favor of the forum choice of domestic plaintiffs because their decision to invest abroad “ put them on notice that they might be required to litigate disputes in a foreign forum , ” such that litigation
abroad was “ reasonably foreseeable

. ” Nevertheless, the court ultimately denied the
defendants’ motion to dismiss for forum non conveniens

. See id. at 83.
I n our view, the district court in EIG misread prior case s in deducing a broad
rule that “ plaintiffs involved in disputes arising from international commerce receive
less choice

- of

- forum deference than plaintiffs engaging in domestic transactions. ”
Id. at 78 ( citing DTEX, LLC v. BBVA Bancomer, S.A. , 508 F.3d 785, 795 (5th Cir. 2007) , Intec USA, LLC v Engle , 467 F.3d 1038, 10 40 (7th Cir. 2006) , and Guidi v.
Inter

– Continental Hotels Corp. , 224 F.3d 142, 147 (2d Cir. 2000) ). Of the cases
relied on by the district court in EIG , the Fifth Circuit ’s decision in DTEX is the only

one arguably on point , and even that case did not reduce the deference given to the
domestic plaintiff’s forum choice solely because of foreign investment

. 3

3 The two other c ases cited in EIG are not on point. The Second Circuit in Guidi reversed a forum non conveniens dismissal in part because the “failure to grant [the plaintiff’s] choice of an American forum significant deference was unsound.” 224 F.3d at 146. The Sevent h Circuit in Intec USA offered some thoughts about forum non conveniens and expressed “doubt” that the threshold deference “has controlling force in litigation among firms all of which trade worldwide,”

Case: 18-12663 Date Filed: 07/01/2020 Page: 13 of 4614 I n DTEX , the operative fact was not that the plaintiff did business with a foreign entity, but that it sued for an “ injury occurring in a foreign country ” and that
the “ alleged torts all occurred in Mexico .” 508 F.3d at 795, 802. This is a n important
distinction , and one that appears in other international commerce cases. For example, i n Sussman v. Bank of Israel , 801 F. Supp. 1068 (S.D.N.Y. 1992), aff’d , 990 F.2d 71 (2d Cir. 1993) , the district court explained that “ [w] here an American plaintiff chooses to invest in a foreign country and then complains of fraudulent acts occurring primarily in that country , the plaintiff’s ability to rely upon citizenship as a talisman against forum non conveniens dismissal is
diminished.” Id. at 1073 (emphasis added). In that case , the plaintiffs invested in an Israeli financial institution, alleged that they were defrauded “in Jerusalem” by the Israeli defendants, and “[a]ccording to [the] plaintiffs ’ theory, i t was in Israel that the defendants hatched their illegal scheme ,” notwithstanding some “peripheral”
activities in the United States. See id. at 107 1, 10 74

. Given these allegations, the plaintiffs’ citizenship and residence “d[id] not constitute the powerful, near

- decisive factors for which they contend [ed],” although the ultimate burden of persuasion still
rested with the defendant

. See id. at 1074. See also Howe v. Goldcorp Investments,
Ltd. , 946 F.2d 944, 951 (1st Cir. 1991) (because the “relevant events” surrounding

but it ultimately vacated the forum non conveniens di smissal because the district court lacked subject

- matter jurisdiction. See 467 F.3d at 1040 , 1044.

Case: 18-12663 Date Filed: 07/01/2020 Page: 14 of 4615 the plaintiff’s claims took place in Canada, it was “not surprising” that most of the
documents and witnesses were in Canada as well ) ; Reid

- Walen v. Hansen , 933 F.2d 1390, 1395 (8th Cir. 1991) (“ When an American corporation doing extensive foreign business brings an action for injury occurring in a foreign country, many courts have partially discounted the plaintiff ’ s United States citizenship .”). The rule described
in cases lik e Sussman is therefore narrower and more nuanced than the one which Citigroup asks us to adopt

. A s Citigroup acknowledges, moreover, neither the Supreme Court nor the Eleventh Circuit has squarely addressed whether it would be appropriate to reduce deference to a domestic plaintiff’s forum choice in cases like Sussman . Nor have

we considered whether some form of intermediate deference is ever permissible for American plaintiffs. Compare Carijano v. Occidental Petroleum Corp. , 643 F.3d 1216, 1228 (9th Cir. 2011) (rejecting intermediate deference ), with Iragorri v. United Techs. Corp. , 274 F.3d 65, 71 (2d Cir. 2001) (establishing “sliding scale” deference).
We need not answer those question s here. Although Citigroup vigorously argues that the claims here “arise from” foreign business dealings, the plaintiffs do not complain of conduct or injuries occurring primari ly in Mexico

. Taking the plaintiffs’ allegations as true, Citigroup directed a scheme and engaged in acts in
furtherance of that scheme from the United States , where it is based

. The

Case: 18-12663 Date Filed: 07/01/2020 Page: 15 of 4616 Institutional Clients Group was responsible for administering the allegedly
fraudulent cash advance program from New York. Several employees involved in the alleged fraud were based in New York or Miami. And several of the allegedly fraudulent communications occurred in meetings on United States soil or in emails
or calls directed to or maintained in the United States. As we read the complaint, this is a dispute focuse d on Citigroup’s conduct in the United States, and so one would presume

— at least initially

— that a trial here would be more convenient (or would at least not be in convenient)

. Citigroup argues that the fraud against the plaintiffs was really perpetrated by
Mexican entities in Mexico

. But Citigroup did not present any evidence to support this contention, and it s argument mischaracterize s the complaint , the thrust of which
is , again, th at Citigroup directed the scheme and caused the plaintiffs ’ injuries from
its offices in the United States. A ccepting that Banamex and Oceanografía were key players in the scheme, the plaintiffs still allege that the Institutional Clients Group “developed and oversaw” the credit facility program, approved fraudulent credit applications with knowledge of the risks, and circumvented internal review procedures

— all in the United S t ates. Citigroup points to obscurities in the complaint regarding who committed
certain acts, noting that the plaintiffs frequently allege that Citigroup “ and/or ” Oceanografía made fraudulent misrepresentations. Citigroup argues that the more

Case: 18-12663 Date Filed: 07/01/2020 Page: 16 of 4617 sp ecific allegations in the complaint confirm that Oceanografía and its controlling shareholder, Amado Yáñez , made “nearly all of the alleged misrepresentations.” With respect to the domestic plaintiffs, Citigroup points out that they allege that “Mr. Yáñez and/or other Oceanografía principals traveled on dozens of occasions to
Louisiana ” to make the f raudulent m isrepresentations to Otto Candies. Citigroup
also submits that Waypoint ’s claims are “ overwhelmingly directed towards ” Oceanografía and Mr. Yá ñez

. These points have some force , but the complaint’s primary allegations are about Citigroup’s involvement in the scheme qua administrator and supervisor

. A nd, as Citigroup concedes, there are allegations in the complaint that Citigroup communicated directly with some of the plaintiffs in the United States. For example, the plaintiffs allege that Citigroup and Otto Candies discussed over email the
mechanics of the cash advance facility and that Citigroup misrepresented Oceanografía ’s financial situation in those communications. The plaintiffs also allege that Citigroup misrepresented Oceanografía ’s financial situation to other plaintiffs and, for example, in duced them to renegotiate their loans with Oceanografía

. Citigroup ’s response is that the specific allegation s about its conduct

are not relevant to the causes of action and therefore immaterial to the forum non
conveniens analysis. For reasons we explain later , however, we have no basis at this stage to assess which allegations are material and which are superfluous.

Case: 18-12663 Date Filed: 07/01/2020 Page: 17 of 4618 Significantly, the plaintiffs chose to sue Citigroup

— and no one else

— for its alleged role in the fraud . They did no t sue Mexican nationals

— Banamex or Oceanografía , or their respective employees or agents

— who according to Citigroup
caused their injuries

. W e take no position on Citigroup’s alternative grounds for
dismissal under Rule s 9(b) and 12(b)(6), but we note that w hen Citigroup argues for forum non conveniens dismissal because the complaint “directly implicate[s] an alleged fraud carried out by Mexican nationals in Mexico , ” it improperly assumes that it did not carry out the fraud . This is an argument on the merits , and not necessarily on whether the facts as alleged should be litigated in the United States.
A dmittedly , it can sometimes be difficult to disentangle the merits of a complaint from a forum non conveniens inquiry

. Whoever is ultimately responsible
for the plaintiffs’ alleged injuries may be a strong indicator of where the most
convenient forum is . If Citigroup is correct that in the end only the Mexican entities
can be liable , then the plaintiffs should have sued those entities instead , in which

case Mexico would have been the presumptively most convenient forum

. But , again, the plaintiffs sued Citigroup , and not the Mexican entities

. Cf. 7 Charles Alan Wright, Arthur R. Miller , & Mary Kay Kane, Fed eral Prac tice and Proc edure § 1623 (3d ed. 2019 ) (explaining that plaintiffs may sue one or more joint tortfeasors without joining others , and need not join every coconspirator if joinder is not feasible)

. I f , on the other hand, the plaintiffs are correct that Citigroup is

Case: 18-12663 Date Filed: 07/01/2020 Page: 18 of 4619 independently liable for its alleged role in overseeing , direct ing , or participating in
the scheme , then presumably the United States would be the most convenient forum

. Because a t this stage we accept the complaint’s allegations as true , we determine the applicable presumption from the plaintiffs’ perspe ctive , and not Citigroup’s

. See Delong Equip. , 840 F.2d at 845 ; Shi , 918 F.3d at 948

. Even as the parties quarrel over the nature of the complaint and the locus of
events , the re remains a n elephant in the room

— Citigroup . It is the only defendant
in this case , and it is based in the United States. Not only that, it has offices in Miami
and conducts substantial activities throughout the United States , including New
York

— where the Institutional Clients Group is b ased . One would therefore think
that it would be more convenient for Citigroup to litigate in the Southern District of
Florida than in Mexico

. This is yet another reason to leave the presumption for the plaintiffs’ chosen
forum in place and require that Citigroup demonstrate

— with positive evidence

— wh y litigating on its home turf would be so oppressive and vexatious that a federal
court should decline jurisdiction

. When an American plaintiff sues an American
defendant for conduct allegedly occurring in the United States , it should not be easy
for the defendant to obtain a forum non conveniens dismissal. See, e.g., Galustian
v. Peter , 591 F.3d 724, 732 (4th Cir. 2010) (providing grea ter deference in favor of
a domestic forum where “the defendant is a resident and citizen of the forum he

Case: 18-12663 Date Filed: 07/01/2020 Page: 19 of 4620 seeks to have declared inconvenient for litigation”); Peregrine Myanmar Ltd. v. Segal , 89 F.3d 41, 46 (2d Cir. 1996) (in weighing the Gulf Oil factors , “the court starts with a presumption in favor of the plaintiff’s choice of forum, especially if the defendant resides in the chosen forum, as here”); Lony v. E.I. Du Pont de Nemours
& Co. , 935 F.2d 604, 608 (3d Cir. 1991) (“This case is puzzling in that frequently
the forum non conveniens issue is raised by a defendant sued away from home who seeks to convince the court that the balance of relevant factors should be tipped against requiring it to defend in a forum far from its home jurisdiction.”). Cf. P iper Aircraft , 454 at 256 n.24 (citing Pain v. United Techs. Corp. , 637 F.2d 775, 797 (D.C. Cir. 1980), for the proposition that “citizenship and residence are proxies for convenience”).
B
We now turn to Citigroup’s argument that “ where foreign plaintiffs significantly outnumber domestic plaintiffs, diminished deference should be applied
to all of the plaintiffs’ forum choice. ” Appellee’s Br. at 17. Though addressed preemptively by the plaintiffs in their initial brief, the district court did n ot reduce deference to the American plaintiffs based on the presence of foreign plaintiffs. It was only because the American plaintiffs invest ed in a foreign entity that the district
court discounted the initial deference and placed them on par with their foreign counterparts

. B ecause that was error, the district court on remand will need to afford

Case: 18-12663 Date Filed: 07/01/2020 Page: 20 of 4621 the requisite deference to the American plaintiffs

. It will then have to deal with a mixed group of foreign and domestic plaintiffs , potentially turning Citigroup’s argument into a live issue . We therefore provide a few observations.
W e have not found any cases holding that reduced deference to American plaintiffs is warranted when the y sue alongside foreign ers , but we have located a couple that state the opposite . In C arijano , 643 F.3d at 1228 , the Ninth Circuit rejected the argument that Piper Aircraft stands for the proposition that “when both domestic and foreign plaintiffs are present, the strong presumption in favor of the domestic plaintiff ’ s choice of forum is somehow lessened.” And in Simon , 911 F.3d

at 1183 , the D.C. Circuit explained that “ t he addition of foreign plaint iffs does not render for naught the weighty interest of Americans seeking justice in their own
courts.” Citigroup cites two unpublished district court cases in support of its argument, but neither is convincing. 4

4 In Takiguchi v. MRI Int’l, Inc. , No. 2:13

- cv - 01183, 2015 WL 6661479, at *3 (D. Nev. Oct. 29, 2015), the plaintiffs were entitled to limited deference not because the foreign plaintiffs outnumbered the American plaintiffs, but because the latter conceded that they were actually residents of Japan and Canada, and that one was a resident of Texas (not of Nevada, where the district court was located). The district court, in any event, denied the motion to dismiss for forum non conveniens. In Fasano v. Juoqing Li , No. 16

- cv - 8759 , 2017 WL 6764692, at * 6 (S.D.N. Y. Dec. 29, 2017), vacated and remanded sub nom. , Fasano v. Yu Yu , 921 F.3d 333 (2d Cir. 2019 ), the district court stated that “[b]ecause the foreign plaintiffs outnumber the domestic plaintiff, and because their financial interest in the action is much gr eater than the domestic plaintiff’s interest, the Court accords diminished deference to Plaintiffs’ choice of forum.” But the Fasano district court did not cite any cases in support of that proposition, and its decision was vacated and remanded for failur e to consider a forum selection clause in the contract at issue.

Case: 18-12663 Date Filed: 07/01/2020 Page: 21 of 4622 There also does not appear to be any practical or doctrinal basis to reduce
deference to domestic plaintiffs who sue alongside foreign plaintiffs , particularly
when they all sue a single American defendant for conduct that they allege occurred
in the United States

. For one, the presence of foreign plaintiffs does not change the
otherwise domestic nature of a complaint

— here, that Citigroup committed wrongs
in or from the United States , where it is based

. Cf. In re Air Crash Off Long Island, N.Y., on July 17, 1996 , 65 F. Supp. 2d 207, 217 (S.D.N.Y. 1999) ( acknowledging
that “ t he presence of foreign plaintiffs (who chose to sue in the United States) [did] not change the essentially American character of [the] case, which involve [d] a flight originating in the United States, a United States carrier, United States manufacturing defendants, and predominantly United States domiciliaries as passengers ”). In addition, t he purpose of forum non conveniens is to prevent the defendant
from facing harass ing and vexatious litigation out of all proportion to the plaintiffs’
convenience

. F rom Citigroup’s perspective, then, the presence of numerous foreign plaintiffs may not make the case more difficult to litigate in the United States

. Citigroup may wish to take numerous depositions because of the sheer number of plaintiffs, but that would be true if there were thirty

- nine American plaintiffs. What is significant for our purposes is that the presence of foreign plaintiffs would not

nece ssarily lead to unwarranted burden s or additional travel for Citigroup to depose
th os e plaintiffs

. The district court has broad discretion over the location of

Case: 18-12663 Date Filed: 07/01/2020 Page: 22 of 4623 depositions , see DeepGulf, Inc. v. Moszkowski , 330 F.R.D. 600, 609 (N.D. Fla. 2019) (collecting cases), and the general rule is that plaintiffs are required to make
themselves available for examination in the district in which they bring suit

. See 8A Charles Alan Wright , Arthur R. Miller , & Richard L. Marcus, Federal Practice and
Procedure § 2112 ( 3d ed. 2010 ) (collecting cases). At the same time, the foreign plaintiffs will not be able to drag Citigroup to all corners of the globe to take corporate deposition s , as the re is a presumption that a defendant will be deposed in
the district of its residence or principal place of business

. See DeepGulf , 330 F.R.D.

at 60 7 (collecting cases). All else being equal, the ratio of domestic to foreign plaintiffs does not necessarily have a bearing on Citigroup’s convenie nce. 5 There may be instances of blatant gamesmanship

— for example , where a domestic plaintiff is added at the eleventh hour to strengthen the other plaintiffs’
connections to the U nited States

— such that reduced deference may be appropriate
for all the plaintiff s. See Vivendi SA v. T

- Mobile USA Inc. , 586 F.3d 689, 694

– 96 (9th Cir. 2009 )

. But at this juncture , we s ee no evidence of improper forum shopping

. Indeed, it would be ironic to fault the foreign plaintiffs for their willingness to travel to the United States to sue Citigroup in its country of citizenship

.

5 We say “necessarily” because at this point Citigroup has not put forward any evidence to the contrary. Case: 18-12663 Date Filed: 07/01/2020 Page: 23 of 4624 Rather than reduce or enhance the deference owed to domestic or foreign plaintiffs, some courts have conduct ed a separate forum non conveniens analys i s for

ea ch group . A b ifurcated analysis may be appropriate , for example, where foreign
and domestic plaintiffs filed separate lawsuits that were consolidated for administrative purposes , or where parties can be dropped or claims can be severed
under Rule 21

. See Kolawole v. Sellers , 863 F.3d 1361, 1372 (11th Cir. 2017) ; Tazoe v. Airbus S.A.S

. , 631 F.3d 1321, 1335 (11th Cir. 2011); King , 562 F.3d at 1383

– 84 ; Banco Latino v. Gomez Lopez , 17 F. Supp. 2d 1327, 1333 (S.D. Fla. 1998).
We leave it to the district court to determine whether a bifurcated analysis is permissible or warranted in this case once the domestic and foreign plaintiffs are afforded t heir appropriate deference on remand

. But we note tha t

— p rocedural
issues aside

— a split analysis migh t be problematic in some respects

. I f the domestic plaintiff s are permitted to move forward in th e district court , then dismiss ing the foreign plaintiffs would force Citigroup to defend against two actions (assuming the foreign plaintiffs refile in Mexico ). That could defeat the purpose of forum non
conveniens , particularly if the parties intend to rely on the same documents and
witnesses in both count ries

. See In re Assicurazioni Generali S.p.A. Holocaus t Ins. Litig. , 228 F. Supp. 2d 348 , 370 (S.D.N.Y. 2002) (declining to dismiss a foreign plaintiff with no bona fide connection to the chosen forum because the domestic plaintiffs in the consolidated action were permitted to move forward , and therefore

Case: 18-12663 Date Filed: 07/01/2020 Page: 24 of 4625 the bulk of evidence would already be in the United States). Then again, this potential problem would be moot if the claims of the domestic plaintiffs are
dismissed for forum non conveniens. These matters are for the district court to consider on remand

. Finally, we address and reject Citigroup’s argument that the two American plaintiffs are only “nominal” litigants entitled to reduced deference. The district court found that these two plaintiffs were American citizens for purposes of its forum
non conveniens analysis and said no more about whether their role in the lawsuit was legitimate

. There has not been discovery on this issue and there is no evidence that
the se entities are not real parties

- in

- interest or that they otherwise lack sta nding to assert their claims

. C In sum, it was inappropriate for the district court to discount or reduce the
deference owed to the chosen forum of the American plaintiffs based on their
decision to invest or transact business abroad. Nor was there any other reason to deviate from the normal rule that an American plaintiff suing in the United States is presumed to have chosen the most convenient forum. A remand is therefore
warranted. See SME Racks , 382 F.3d at 1102 (reversing a forum non conveniens
dismissal due to the district court’s failure to afford the proper deference owed to domestic plaintiffs).

Case: 18-12663 Date Filed: 07/01/2020 Page: 25 of 4626 O ur decision today does not guarantee that plaintiffs can avoid forum non
conveniens dismissal by making vague allegations, or by strategically joining foreign plaintiffs together with domestic ones and suing a single domestic defendant

. T he plaintiff

- friendly, facial reading of the complaint leads only to an initial presumption. That presumption is not dispositive, and a defendant can always marshal positive evidence to overcome it. See , e.g., Contact Lumber Co. v. P.T. Moges Shipping Co. , 918 F.2d 1446, 1449 (9th Cir. 1990) (“ Although a defendant must meet an almost impossibl e burden in order to deny a citizen access to the courts of this country, the cases demonstrate that defendants frequently rise to the challenge. ”) (internal quotation marks and citation omitted). Citigroup had the opportunity to engage in limited discove ry related to forum non conveniens and to present evidence in support of its motion. But, as explained below , Citigroup opposed discovery and failed to carry its burden.
IV
W e now consider the Gulf Oil private and public interest factors. Although
the district court had wide latitude to weigh the evidence and determine whether
those factors point ed clearly toward dismissal , the threshold error on the deference owed to the domestic plaintiffs tainted its analysis. The er ror in effect switched the burden of persuasion and allowed Citigroup to obtain a forum non conveniens
dismissal without presenting any e vidence on these factors

.

Case: 18-12663 Date Filed: 07/01/2020 Page: 26 of 4627 As noted earlier, Citigroup bore the burden of persuasion on all elements of
its forum non conveniens motion. See Leon , 251 F.3d at 1311. A strong presumption
in favor of the American plaintiffs should have forced Citigroup to offer “ positive evidence of unusually extreme circumstances ” and “ material injustice ” to oust those plaintiffs from their chosen domestic forum. See SME Racks , 382 F.3d at 110 1 (quoting Burt , 218 F.2d at 357 ). Yet Citigroup opposed discovery and offered no
evidence on the private interest factors

. T he district court also erred with respect to the foreign plaintiffs. Even though they were entitled to “somewhat” less deference than their domestic counterparts , that lesser degree of deference should not have removed Citigroup’s burden entirely

. B y failing to proffer any positive evidence of private inconvenience, Citigroup failed to carry its burden as to both the domestic and foreign plaintiffs

. A We begin with Piper Aircraft , which involved only foreign plaintiffs and
therefore established the floor of a defendant’s forum non conveniens burden . Th at

case arose from a plane crash in Scotland

. See 454 U.S. at 2 38

– 39 . T he plane was subject to Scottish air traffic control and operat ed through a Scottish air taxi service,
and t he pilot and passengers were all Scottish subjects and residents. See id

. at 239.
T he Supreme Court held that , under these circumstances , the defendant’s burden to demonstrate private inconvenience was not particularly heavy ; the defendant was

Case: 18-12663 Date Filed: 07/01/2020 Page: 27 of 4628 not require d to “ submit affidavits identifying the witnesses they would call and the testimony these witnesses would provide if the trial were held in the alternative
forum .” Id. at 258. A t the same time, the defendant was required to “ provide enough
information to enable the [d] istrict [c] ourt to balance the parties ’ interests. ” Id. The Supreme Court did not explain what would constitute “enough ” information , so i t is
useful to examine the facts and history of the case to better delineate its holding. Before the case reached the Supreme Court, the Third Circuit had reversed the
district court’s dismissal for forum non conveniens , concluding that the defendant
did not “set[ ] forth the requisite specific information” of private inconvenience. See Reyno v. Piper Aircraft Co. , 630 F.2d 149, 161 (3d Cir. 1980), rev’d , 454 U.S. 235 (1981) . But the district court had in fact rel ied on affidavits, including one that
attested to t he defendant’s witnesses and their testimony on certain topics , albeit in
broad strokes

. See Piper Aircraft , 454 U.S. at 2 59 & n.27. The relevant affidavit did not identify witnesses by name, but offered general categories of witnesses

— for example, by occupation or by role in the incident in question

— as well as some expected topics of testimony. See id. S ee also Petition for Writ of Certiorari , Piper Aircraft Co. v. Reyno, Nos. 80

- 848 & 80

- 883 (filed Nov. 25, 1980), at Ex. F (Affidavit of Charles J. McKelvey). On that record, the Supreme Court held that “sufficient information was provided” to allow the district court to assess the
relevant interests

. See Piper Aircraft , 454 U.S. at 2 58

– 59. W e therefore do not read

Case: 18-12663 Date Filed: 07/01/2020 Page: 28 of 4629 Piper Aircraft as holding that any less information would have suffice d under the
circumstances

. 6
When American plaintiffs sue in federal court , the defendant’s burden is
heavier

. As w e have long held , a defendant must come forward with “ positive evidence of unusually extreme circumstances ” such that the district court is

“ thoroughly convinced that material injustice is manifest before exercising any such discretion as may exist to deny a United States citizen access to the courts of this country

. ” SME Racks , 382 F.3d at 110 1 (quoting Burt , 218 F.2d at 357 )

. 7

6 The affidavit provided, for example, that the defendant “would call as witnesses the owners and employees of the Scottish air

- taxi company which owned and operated the aircraft and hired the pilot,” that their testimony “would concern the cause of and liability for this accident,” and that all “such persons are residents and citizens o f Scotland.” The affidavit also provided that the defendant “would call as witnesses the persons who were responsible for the training and licensing of the pilot of this aircraft,” that their testimony “would concern the cause of the accident and the liab ility thereof,” and that those witnesses also were residents and citizens of Scotland. The affidavit continued like this for five categories of witnesses

. See Petition for Certiorari, Piper Aircraft Co. v. Reyno , Nos. 80

- 848 & 80

- 883 (filed Nov. 25, 1980), at Ex. F.
7 For cases reversing forum non conveniens dismissals because the defendant failed to proffer sufficient evidence in light of the circumstances of the case, see Lacey , 862 F.2d at 44 (holding that the evidence was i nsufficient because the defendants “submitted no evidence to support their contentions,” whereas the plaintiff produced a report that the cause of a crash was a defective product manufactured in the United States, and submitted affidavits “that various wit nesses on the product liability issue are located in Pennsylvania and throughout the United States and are available to testify here”), and Baris v. Sulpicio Lines, Inc. , 932 F.2d 1540, 1550 (5th Cir. 1991) (rejecting bare allegations of private inconvenie nce and holding that “in order to fulfill the requirements of Gulf Oil , a more detailed presentation must be made by the defendants concerning the private interest factors”). For cases holding that there was sufficient evidence of inconvenience, see Inter face Partners Int’l Ltd. v. Hananel , 575 F.3d 97, 105 (1st Cir. 2009) (affirming forum non conveniens dismissal where the defendant “adequately identified the twenty

- nine witnesses he intend[ed] to call in the proceedings[,] . . . indicated the relevance o f at least ten” of those witnesses, and offered “affidavits from those ten” witnesses that they would testify to “various facts disputing the allegations of misconduct asserted”), Delta Air Lines, Inc. v. Chimet, S.p.A. , 619 F.3d 288, 300 (3d

Case: 18-12663 Date Filed: 07/01/2020 Page: 29 of 4630 W e have not set out strict rules on what constitutes “unusually extreme
circumstances , ” and it probably does not make sense to do so. That is because the quantum and quality of evidence needed will depend on the unique facts and
circumstances of the given case . See , e.g., Lacey , 862 F.2d at 44 (holding that “on the particular facts of this case, the defendants did not submit sufficient information to allow the district court properly to undertake the forum non conveniens analysis”)

. I n complex commercial case s

— with elaborate legal claims an d allegations involving
transnational communications , or with multiple international and domestic parties

— the locus of events may be difficult to pinpoint

. B
Because this is a complex commercial dispute with domestic and foreign plaintiffs, Citigroup should have offered some evidence of inconvenience and certainly no less than what the defendant provided in Piper Aircraft. After a thorough review of the record , we find very little if any positive evidence of Citigroup’s inconvenience , especially regarding the location of documents and
witnesses

.

Cir. 2010) (a ffirming a forum non conveniens dismissal because the defendant “identified the witnesses it intended to depose and proffered in oral argument the information that it expected to obtain”), and Gschwind v. Cessna Aircraft Co. , 161 F.3d 602, 610 (10th Cir. 1 998) (holding that the defendant s , who “c[a]me forward with documentary evidence,” offered the “bare minimum of evidence necessary,” although the court “certainly would have benefitted from additional evidence in the record”). Case: 18-12663 Date Filed: 07/01/2020 Page: 30 of 4631 In its forum non conveniens motion , Citigroup argued that “key individuals identified in the [amended complaint] that would be critical to Citigroup’s defense include former Banamex employees located in Mexico.” But it did not identify any of the former Banamex employees by name or position , attest to their residence in
Mexico with affidavits , anticipate the basic topics of their testimony, or explain how
the se unidentified witness es would be critical to its case . Citigroup also asserted
that it s defense would be based on corporate and banking records and communications in Mexico, including documents belonging to Citigroup’s alleged
Mexican co

- conspirators. Again, however, it did not identify these documents, generally or specifically. Citigroup also speculated

— again without details or
evidence

— that “[t]here is no reason to doubt that equally critical witnesses from [ Oceanografía ] and Pemex . . . are also located in Mexico

. ”
The plaintiffs , on the other hand, allege that Citigroup employees involved in
the cash advance program are in the United States and identif y some of the se employees by name

. The plaintiffs also refer to Citigroup ’s public statement that it
fired individuals involved in the fraud both “inside and outside” of the United States. We not only accept these allegations as true at this stage, we also draw from the m appropriate reasonable inferences. See Delong Equip. , 840 F.2d at 845 ; Shi , 918
F.3d at 948

. One reasonable inference is that these domestic witnesses have material
information and are available or subject to compulsory process in the United States.

Case: 18-12663 Date Filed: 07/01/2020 Page: 31 of 4632 Citigroup made some factual assertions in its motion , but it did so by either
misconstru ing the complaint or by contradict ing the plaintiffs ’ allegations without
discrete evidentiary support

. For example, Citigroup argued that “Mexico is where the cash advance contracts were negotiated and executed,” which impl ie s that
material evidence will be located there

. The paragraph of the complaint to which Citigroup cite d , however, allege s that “ Citigroup, through Banamex, and Oceanografía entered into a Cash Advance Contract in September 2012

. ” N owhere
do the plaintiffs allege that the cash advance program was negotiated and executed exclusively in Mexico

. Indeed, t hey sought discovery on that very point (and others)

. Citigroup may be correct, but it had the burden to rebut the plaintiffs’ allegations on these matters with positive evidence

. No evidence, by definition, is an absence of positive evidence.
E ven if we were to accept its unsupported factual claim that the cash advance program was negotiated and executed in Mexico , Citigroup did not rebut the plaintiffs’ plausible allegations that it would have collected and stored the relevant documents during the SEC and Justice Department investigations. T he plaintiffs , we note, allege that a Citigroup employee in Miami led an internal audit into the cash advance program

. Citigroup did not contest this factual allegation with a n affidavit from a corporate representative or otherwise explain why documents from
that audit would not be available in the United States.

Case: 18-12663 Date Filed: 07/01/2020 Page: 32 of 4633 Citigroup argued below that “Mexico is where [ Oceanografía ’s] alleged falsification of Pemex work estimates and authorizations took place.” T his may be

true , but the plaintiffs allege that the ordinary business practice was for Oceanografía
to send those work estimate documents to Citigroup in the United States

. Based on
this unrebutted allegation, it is not clear why Citigroup does not already have

— or could not easily access

— the allegedly falsified work estimates and authorization
documents , even if they were originally created in Mexico

. T he plaintiffs also plausibly allege that Citigroup controls all the email servers of its subsidiaries, including Banamex, from the United States. Given the absence of evidence to the contrary , it should be relatively easy for Citigroup to access the relevant documents
from those servers

. If that is not so, Citigroup should explain why not. See Simon , 911 F.3d at 1186 ( explaining that “[d] igitization . . . has eased th e burden of transcontinental document production and has increasingly become the norm in global litigation ”); Maggie Gardner, Retiring Forum Non Conveniens , 92 N.Y.U. L. Rev. 390, 414 (2017) (arguing that , because of modern technology and digitization,

“ transnational evidence collection is far less burdensome today than it was even at
the time of Piper , ” such that the defendant’s burden of proving hardship should be harder to meet). Citigroup’s contention s about the location of key evidence and witnesses may well be plausible

. They may even be correct. But Citigroup failed to support those

Case: 18-12663 Date Filed: 07/01/2020 Page: 33 of 4634 contentions with positive evidence on the Gulf Oil private interest factors , and therefore failed to carry its burden

. 8
C Citigroup makes a more sweeping argument on appeal. It contends that the
district court viewed the complaint as a whole and reasonably conclude d that the
relevant evidence would be in Mexico

. Citigroup relies on Ford v. Brown , 319 F.3d
1302 , 1308 (11th Cir. 2003) , for the proposition that district court s must analyz e the elements of the plaintiffs ’ causes of action, consider what evidence is required to

8 Citigroup did provide some positive evidence at the forum non conveniens stage, but its evidence did not speak to the location of documents and witnesses. First, Citigroup cited to an expert affidavit and a copy of a complaint that a Mexican affiliate of Otto Candies had filed in Mexico against Banamex and Citibank, N.A. (a subsidiary of Citigroup not named in this case). Those documents tended to show that Mexico was an adequate and available forum. As noted above, the plaintiffs do not challenge this conclusion on appeal, and so this evidence is not relevant for our purposes. Second, Citigroup referred to the same expert affidavit to show that it would be difficult to compel Mexican witnesses to testify in the United States and that Mexican banking laws would prevent Banamex from sharing information absent permission from the Mexican banking regulator. These contentions, however, presuppose (1) that mat erial witnesses are in Mexico, and not in the United States, and (2) that Citigroup does not already have domestic access to the Banamex documents apparently protected by Mexican banking secrecy laws. Citigroup did not offer any evidence to establish thes e two implicit and necessary premises. Third, Citigroup submitted various SEC filings to demonstrate that the Institutional Clients Group was a “business segment,” not a legal entity, and that the Group had employees all over the world, including at subs idiaries such as Banamex. The district court did not rely on these documents, and it is not clear how the Group ’s status as a business segment rather than a distinct legal entity changes the forum non conveniens analysis. The complaint does not depend on that distinction, and instead focuses on the role that the Group played in developing and overseeing the credit facilities. The fact that the Group is a business segment with employees at Banamex, moreover, coul d be a double

- edged sword. It might make it more plausible that New York

- based executives of the Group directed the alleged scheme from the United States through their subordinates in Mexico. That would be consistent with the plaintiffs’ claims, and it w ould also mean that evidence of the fraudulent conduct would be accessible in the United States.

Case: 18-12663 Date Filed: 07/01/2020 Page: 34 of 4635 prove and disprove each element, and make a reasoned assessment about the location
of relevant evidence

. The re are two problems with Citigroup’s argument. The first is that the
district court did not delineate the elements of each claim in order to sort through the
relevant and irrelevant evidence

. The second is that the court did not have positive evidence to sort through in the first place . This case is therefore similar to La Seguridad v. Transytur Line , 707 F.2d 1304, 130 6

– 0 7, 1310 (11th Cir. 1983) , where
we reversed a forum non conveniens dismissal because the district court “ did not attempt to go beyond [the] representations of counsel to ascertain the underlying
facts of the case ” and “ did not attempt to pin counsel down to their theories of the case, and the facts that would support their theories .” Likewise, the district court
here stated

— without further explanation

— that it would be necessary for the plaintiffs to establish the “underlying fraud” in Mexico . It also accepted th e contention of Citigroup that its defense would require documents in Mexico , even though Citigroup did not describe with any particularity the defense or the evidence necessary to establish it

. Citigroup assumes that the district court must have “appreciated” which facts
would be relevant to the litigation , and therefore tries to reconstruct what it sees as
the court’s implicit reasoning. But that is not enough for us evaluate the factual and legal issues of the case

. See id. at 1308 (“Without delineating the elements of the

Case: 18-12663 Date Filed: 07/01/2020 Page: 35 of 4636 claims and the defenses thereto, we simply cannot know the factual issues raised by these claims, and are left only to speculate as to what witnesses and documents mi ght be relevant and where they might be located.”). Even if we were to accept Citigroup’s reconstructed argument

— th at the RICO claims would require the plaintiffs to establish an “ enterprise ” with foreign entities
and that the aiding and abetting fraud claims would require the plaintiffs to establish

an underlying fraud in Mexico

— it is still not clear why it wouldn’t be just as easy

to develop these theories in the United States

. First, b ased on their allegations, it is plausible that the plaintiffs could establish the RICO enterprise and underlying fraud
with documents already in Citigroup’s possession. Indeed , the plaintiffs contend that there is no real dispute concerning the events in Mexico , so it seems they believe they can prove their case without resorting to additional documents or witnesses
there

. Second, the plaintiffs intend to prove that Citigroup controlled and directed the enterprise from the United States, so it is not clear why the bulk of evidence
wouldn’t be in the United States, even if some documents tending to establish the global enterprise could also be found in Mexico. T hird, Citigroup’s argument ignores the plaintiffs’ direct fraud and fiduciary duty claims , which appear at first glance to require investigation into Citigroup’s conduct in the United States

. In any
event , no matter how we try to dissect the various claims, this is a “fragmentary

Case: 18-12663 Date Filed: 07/01/2020 Page: 36 of 4637 record” on which it is “ impossible to make a sound determination of relative
convenience

. ” T hat require s us to remand for further development. See id.
T he district court erred in conclud ing that the “ease of access to evidence”
factor supported dismissal

. T hat conclusion was based on unsupported finding s that
the material documents and evidence “are all located in Mexico ,” and that “all of the key players in this dispute . . . will be available in Mexico.” The court also erred in concluding that the “availability of witnesses and compulsory process” factor favor s dismissal

. T h at conclusion was based on the unsupported contention of Citigroup that it needed to rely on witnesses in Mexico for its defense. On this record, these

error s were fatal to the Gulf Oil private interest analysis

. See Ford , 319 F.3d at 1308 (“ Perhaps the most important ‘ private interest ’ of the litigants is access to
evidence. ”) ; 17 James Wm. Moore et al., Moore ’ s Federal Practice § 111.74 [3][c][iii] ( 3d ed. 2020 ) (“ Of all the private interest factors

. . . the relative ability of the forums to compel the attendance of significant unwilling witnesses at trial often is considered the most important factor, because the presentation of live testimony often is ‘ essential to a fair tria l .’” ).
D
The district court also concluded that the public interest factors weighed in favor of litigation in Mexico . A lthough Citigroup is the only named defendant, the case involved “four primary players, three of which are unquestionably Mexican

Case: 18-12663 Date Filed: 07/01/2020 Page: 37 of 4638 entities ”

— B anamex , Oceanografía , and Pemex

. The court reasoned that Mexico “clearly has a substantial interest in this case being litigated in Me xico as evidenced by numerous parallel proceedings underway and the fact that one of the key players
in this dispute is owned by the Mexican government

. ”
The district court did not ultimately find “such meaningful connections between any of the parties and [the Southern District of Florida] that would outweigh the clear interest Mexico has over this litigation.” But that conclusion is questionable because t he plaintiff s allege that Citigroup c onducts substantial
business in the Southern District of Florida and that two of its Miami

- based employees audit ed the cash advance program after the scandal unfolded in Mexico

. T here is therefore some local interest in the case

. On the other hand, there does not appear to be any local need to have the case dismissed

. T he district court did not
cite , for example, any administrative difficulties or docket congestion in the
Southern D istric t that warranted a forum non conveniens dismissal

. But even if the district court adequately considered the administrative interests
of the Southern District , it failed to consider the sovereign interests of the United
States

. See SME Racks , 382 F.3d at 1104 ( explaining that although the district court “recognized that Florida had in interest in [that case], it failed to recognize any
federal interest ” ). T he United States has a stake in this litigation , and that should
factor into the public interest analysis

. See Republic of Panama, v. BCCI Holdings

Case: 18-12663 Date Filed: 07/01/2020 Page: 38 of 4639 (Luxembourg) S.A. , 119 F.3d 935, 953 (11th Cir.1997) ( “Relevant public interest factors include the sovereigns ’ interests in deciding the dispute [

. ] ” ).
As explained above, the plaintiffs opted to sue Citigroup for its alleged role in
the fraud . If the y succeed in proving the facts and legal claims , as alleged, then Citigroup

— a United States corporation

— would be liable to two American plaintiffs
for causing them injuries from its United States offices. We have observed that “a sovereign has a very strong interest when its citizens are allegedly victims and the injury occurs on home soil.” SME Racks , 382 F.3d at 1104

. See also Esfeld v. Costa Crociere, S.P.A. , 289 F.3d 1300, 1311 (11th Cir. 2002) ( “ T here is a strong federal interest in making sure that plaintiffs who are United States citizens generally get to choose an American forum for bringing suit, rather than having their case relegated to a foreig n jurisdiction.” ). As further evidence that the United States has a substantial interest in this case, the Justice Department and SEC conducted domestic investigations into Citigroup for the cash advance program at issue. See Carijano , 643 F.3d at 1232 ( explaining that the United States has a “significant interest in providing a forum for those harmed by the actions of its corporate citizens”). On
remand , the district court must consider the interests of the United States in analyzing the Gulf Oil public interest factors.

Case: 18-12663 Date Filed: 07/01/2020 Page: 39 of 4640 V We now turn to the discovery condi tions that the district court imposed in its order, as the parties dispute the ir propriety and efficacy

. Because we are reversing on other grounds, we do not directly address whether the conditions , as phrased , were appropriate . But we provide some thoughts for the district court and the parties
to consider on remand.
In Piper Aircraft , the Supreme Court suggested that , in order to mitigate the practical difficulties of forum non conveniens dismissal s , “district courts might dismiss subject to the condition that defendant corporations agree to provide the records relevant to the plaintiff ’ s claims.” 454 U .S. at 25 7 n.25

. The Supreme Court
did not explain , however, how district courts should enforce discovery conditions as litigation proceeded abroad. Nonetheless, f ollowing the Piper Aircraft decision, it
became common practice for courts to include stipu lations, not only regarding discovery, but also involving the defendant’s consent to foreign jurisdiction and final judgment, and the defendant’s waiver of foreign statutes of limitation. With respect to discovery, district courts have imposed conditions that range from the parties having to make “ relevant ” documents and witnesses available to the parties consenting to abide by the Federal Rules of Civil Procedure

. We h ave approved of these types of discovery conditions and have even held that the imposition of such conditions support ed the finding of an adequate , alternative

Case: 18-12663 Date Filed: 07/01/2020 Page: 40 of 4641 forum

. See Satz v. McDonnell Douglas Corp ., 244 F.3d 1279, 1283 (11th Cir. 2001) ( affirming the district court’s finding that the foreign court was adequa te in part
because the defendant “ agree [d] to conduct all discovery in accordance with the Federal Rules of Civil Procedure”); Magnin v. Teledyne Cont ’ l Motors , 91 F.3d 1424, 1430

– 31 (11th Cir. 1996) (affirming a forum non conveniens dismissal in part
based on the co ndition that any domestic discovery “be done in accordance with the Federal Rules of Civil Procedure”). 9 In this case, the district court required Citigroup to “reasonably make available all relevant documents and witnesses within its control,” and th e plaintiffs would have been able “to move to reinstate the action within ninety (90) days of [Citigroup] failing to comply” with that or any other condition. Given our precedent,

w e do not fault the district court for imposing such a typical condition in its order. But we urge the parties and the court to re - evaluate the limits and contours of th at condition in case the district court again dismisses for forum non conveniens

. For starters , w hat rules would govern the scope of “reasonableness,”

“ relevance , ” and “control”? Would those concepts be defined by Mexican law or by the Federal Rules of Civil Procedure ? The plaintiffs urge the latter , arguing that

9 Cases involving similar discovery conditions are voluminous. See, e.g., Mercier v. Sheraton Int’l, Inc. , 981 F.2d 1345, 1358 (1st Cir. 1992); Stewart v. Do w Chem. Co. , 865 F.2d 103, 104

– 05 (6th Cir. 1989); Oto v. Airline Training Ctr. Arizona, Inc. , 247 F. Supp. 3d 1098, 1109 (D. Ariz. 2017)

.

Case: 18-12663 Date Filed: 07/01/2020 Page: 41 of 4642 we have “emphasized” dismissal s conditioned on compliance with U.S. disc overy rules

. Although we have sanctioned that type of condition, we have also approved
of a condition that only require d disclosure of “relevan t ” documents without
reference to the Federal Rules

. See Tazoe , 631 F.3d at 1330

. Either type of condition could present problems. As the plaintiffs note , the required disclosure of “relevan t ” evidence is open - ended

. If foreign law governs relevance, the condition subjects the parties to some uncertainty and to the idiosyncrasies of the foreign cour t , which to some extent undermines the purpose of forum non conveniens

. See Maggie Gardner, Parochial Procedure , 69 Stan. L. Rev. 941, 987 (2017) (arguing that “ it is hard for judges to forecast whether the alternative foreign forum will resolve the defendants evidentiary concerns ” or “ whether the foreign court ’ s jurisdiction over evidence will actually translate into party access ”). Requiring the parties to follow the Federal Rules , on the other hand , may provide them with more clarity about their o ngoing obligations. But w e have not given much

more though t to what mechanism s, or legal authority , the district court has at its disposal to ensure compliance with the Federal Rules while a dismissed case is being litigated in a foreign court

. W hat permits the district court to adjudicate discovery disputes in a case that it has already dismissed? Does the court need to retain some

Case: 18-12663 Date Filed: 07/01/2020 Page: 42 of 4643 sort of jurisdiction? And what happens if those disputes are also pending before a
Mexican court? 10 As noted, the di strict court included a “return jurisdiction” clause , which permit s the plaintiffs to refile in the Southern District of Florida in the event of a
breach of a condition and perhaps would encourage Citigroup’s compliance with the discovery conditions

. W e h ave modified dismissal orders to add return jurisdiction
clause s

— at least where there was some indication that the foreign court would not assume jurisdiction

. S ee Leon , 251 F.3d at 1316; King , 562 F.3d at 1384

. But w ith the understanding that a return jurisdiction clause is per missible, we still foresee possible practical difficulties.
As one commentator has explained , the efficacy of a return jurisdiction clause depend s on a “ herculean conception of [the] plaintiffs’ patience, litigiousness, and
financial resources

. ” Gardner, Parochial Procedure , 69 Stan. L. Rev. at 990

. Some
p laintiff s may no t have the resources or appetite to refile and start anew in federal

court , especially after protracted litigation abroad. T hat presupposes that the

10 Other courts have noted some of these issues in passing. See In re Union Carbide Corp. Gas Plant Disaster at Bhopa l, India in Dec. , 1984 , 809 F.2d 195, 205 (2d Cir. 1987) (explaining that a discovery stipulation would be “subject to such approval as may be required of the [foreign] court,” and otherwise “the parties will be limited by the applicable discovery rules of the [foreign] court in which the claims will be pending”); Pinder v. Moscetti , 666 F. Supp. 2d 1313, 1321 (S.D. Fla. 2008) (requiring the defendants to provide all relevant evidence within their custody and control, but recognizing that such a condition “ d[id] not extend the discovery allowed under the Federal Rules of Civil Procedure to litigation in the Bahamas,” as discovery “shall be governed by the applicable discovery rules of the Bahamas court”).

Case: 18-12663 Date Filed: 07/01/2020 Page: 43 of 4644 plaintiff s even had the resources to travel to and refile in the foreign court in the first place

. See Martin Davies, Time to Change the Federal Forum Non Conveniens Analysis , 77 Tu l. L. Rev. 309, 319 (2002) (explaining that “few plaintiffs even bother to pursue their claim in the alternative foreign forum following forum non
conveniens dismissal from a U.S. court.” ) (italics added)

. F or plaintiffs who do have resources for further litigation, the y may actually
seek out or manufacture disputes in the hopes that even a minor discovery disagreement could trigger a return jurisdiction clause and reopen the doors to
federal court. The p laintiffs here, for example, might want to seek extremely broad discovery and then refile in the district court the moment that Citigroup withhold s a document on relevance grounds

. Accordingly, on remand , the district court should consider whether a single
breach would permit the plaintif fs to reinstitute their case in federal court , and
whether a breach must be material

. I f so, what would constitute a “ material ” breach , and under whose law ? Moreover, could Citigroup “cure” a breach if the plaintiffs file a discovery motion and the district court conclude s that the withheld document s

were relevant ? That is, if the district court resumes jurisdiction and resolve s a discovery dispute in the plaintiffs’ favor, could Citigroup agree to produce the
withhel d document s and then simply return to the Mexican court? Or does Citigroup , like Julius Caesar, cross the Rubicon once it improperly withholds a

Case: 18-12663 Date Filed: 07/01/2020 Page: 44 of 4645 relevant document ? W ithout considering these questions ( and perhaps others ) , the
district court may face practical problems down the road which could make litigation
less convenient for everyone involved

. V I
T he district court did not apply the deference owed to the domestic plaintiffs , and it erred in weighing the Gulf Oil private interest factors as to all the plaintiffs because Citigroup did not satisfy its burden

. W e therefore reverse and remand for further proceedings , including consideration of the United States’ interest s under the public interest factors

. The district court may in its discretion permit limited discovery, hold a n evidentiary hearing, or accept additional evidence and supplemental briefing from the parties on the private and public interest factors

. Because the plaintiffs have not challenged the district court’s finding s that Mexico is an adequate and available forum, or that the y would not be subject to undue inconvenience or delay if they had to reinstate their case in Mexico, those findings stand

. W e also leave in place the
district court’s unchallenged finding s with respect to the enforceability of the foreign judgment , though we take no view on the weight of this fact in the district court’s Gulf Oil analysis on remand

. W e do not address at this time whether the district court erred in its
understandable attempt to ensure that Citigroup would provide adequate discovery

Case: 18-12663 Date Filed: 07/01/2020 Page: 45 of 4646 in Mexico

. W e also do not take any view on Citigroup’s alternative arguments for dismissal, which the district court did not reach. REVERSED AND REMANDED . Case: 18-12663 Date Filed: 07/01/2020 Page: 46 of 46