[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.

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Two American plaintiffs. Thirty-seven foreign plaintiffs. 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 relevant 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 plaintiffs. 

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 

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Mighty U.S. Tr., 918 F.3d 944, 948 (D.C. Cir. 2019) (accepting the plaintiffs’ 

allegations of facts as true 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 affidavits or 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 stateowned oil and gas company. Grupo Financiero Banamex S.A. de C.V. (the 

“Banamex Group”) is a wholly owned subsidiary of Citigroup and has 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 the Institutional Clients Group, was responsible 

for developing and overseeing the credit facilities, and Citigroup supervised the 

entire arrangement. In exchange for the cash advances, Citigroup charged 

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Oceanografía a high interest rate and obtained the right to collect repayment directly 

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

operational and financial condition. For each increase of the credit facility, 

Citigroup prepared a memorandum based on credit application forms that 

Oceanografía provided. The formsincluded work estimates for the Pemex contracts, 

as well as Pemex’s signed authorizations, 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. Because

Citigroup and Oceanografía communicated directly through Citigroup’s servers in 

the United States, the falsified Pemex 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 approved the cash advances are (or were)

located in Miami and New York. 

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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. The government then learned of the cash advance scheme

and investigated further. Mexican banking regulators found that ten Citigroup 

employees had violated Mexican criminal laws, and Mexican authorities pursued 

charges against Citigroup employees for causing Banamex to violate banking laws. 

The 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.

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The scandal also led the SEC and the Justice Department to open domestic 

investigations into Citigroup. Citigroup disclosed these investigations in its SEC 

annual report, stating that they 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, thirty-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 misrepresentations 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 

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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 

alleges that it received fraudulent communications in Louisiana. 

Another group of plaintiffs comprises 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 those 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, 

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concluding that the plaintiffs failed to establish good cause for discovery and that 

their requests were overbroad.

The plaintiffs then filed an amended complaint, and Citigroup again moved to 

dismiss on the same grounds. The district court heard 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 the 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, 1310–11 (11th Cir. 2001). Second, the balance of

the relative private and public interests must weigh in favor of dismissal to justify 

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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 

possibility of viewing the premises, and the enforceability of a judgment. See Gulf 

Oil, 330 U.S. at 508. Public 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 inconvenience or delay. See Leon, 251 F.3d at 

1310–11. “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 interests, 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). The 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 appeal, so we do not address them 

further. 

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circumstances,” and the district court must be “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, Inc. v. 

Sistemas Mecánicos Para Electrónica, 382 F.3d 1097, 1101 (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 430 (quoting Piper Aircraft, 454 U.S. at 255–56). Reduced 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 and 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). 

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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”).

III

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 thirtyseven foreign plaintiffs would not be entitled to the same level of deference. But 

because 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 deference owed to the forum choice of domestic plaintiffs cannot be 

reduced solely because they chose to invest in a foreign entity and may have 

expected 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 

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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 court begins with the reasonable assumption that “[w]hen the plaintiff has 

chosen the home forum . . . this choice is convenient.” Piper Aircraft, 454 U.S. at

255–56. That 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. It is possible that the most significant events giving rise to the 

plaintiff’s claims 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 domestic 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—except where there is a valid 

forum-selection clause, see Atl. Marine Constr. Co. v. U.S. Dist. Court, 571 U.S. 49, 

63 (2013)—the plaintiff’s reasonable expectations are beside the point.

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We acknowledge that at least one case supports the proposition which the 

district court applied and which Citigroup now urges us to adopt. In EIG Energy 

Fund XIV, L.P. v. Petróleo 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. 

In our view, the district court in EIG misread prior cases 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, 1040 (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 cases 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 Seventh 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,” 

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In 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 an important 

distinction, and one that appears in other international commerce cases. 

For example, in 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, it was in Israel 

that the defendants hatched their illegal scheme,” notwithstanding some “peripheral” 

activities in the United States. See id. at 1071, 1074. 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 dismissal because the district court lacked 

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

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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 like Sussman is therefore narrower and more nuanced than the one which 

Citigroup asks us to adopt. 

As 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 questions here. Although Citigroup vigorously 

argues that the claims here “arise from” foreign business dealings, the plaintiffs do

not complain of conduct or injuries occurring primarily 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

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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 focused 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 inconvenient).

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 its argument mischaracterizes the complaint, the thrust of which 

is, again, that Citigroup directed the scheme and caused the plaintiffs’ injuries from

its offices in the United States. Accepting 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 States. 

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 

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specific 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 fraudulent misrepresentations to Otto Candies. Citigroup 

also submits that Waypoint’s claims are “overwhelmingly directed towards”

Oceanografía and Mr. Yáñez. 

These points have some force, but the complaint’s primary allegations are

about Citigroup’s involvement in the scheme qua administrator and supervisor.

And, 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, induced them to renegotiate their loans with 

Oceanografía. Citigroup’s response is that the specific allegations 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. 

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Significantly, the plaintiffs chose to sue Citigroup—and no one else—for its

alleged role in the fraud. They did not sue Mexican nationals—Banamex or 

Oceanografía, or their respective employees or agents—who according to Citigroup

caused their injuries. We take no position on Citigroup’s alternative grounds for 

dismissal under Rules 9(b) and 12(b)(6), but we note that when 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. 

Admittedly, 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, Federal Practice and Procedure § 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). If, on the other hand, the plaintiffs are correct that Citigroup is 

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independently liable for its alleged role in overseeing, directing, or participating in

the scheme, then presumably the United States would be the most convenient forum.

Because at this stage we accept the complaint’s allegations as true, we determine the 

applicable presumption from the plaintiffs’ perspective, 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, there remains an 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 based. 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—

why 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 greater deference in favor of 

a domestic forum where “the defendant is a resident and citizen of the forum he 

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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. Piper 

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 not reduce 

deference to the American plaintiffs based on the presence of foreign plaintiffs. It 

was only because the American plaintiffs invested in a foreign entity that the district 

court discounted the initial deference and placed them on par with their foreign 

counterparts. Because that was error, the district court on remand will need to afford 

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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.

We have not found any cases holding that reduced deference to American 

plaintiffs is warranted when they sue alongside foreigners, but we have located a 

couple that state the opposite. In Carijano, 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 “the addition of foreign plaintiffs 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 greater 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 

failure to consider a forum selection clause in the contract at issue. 

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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 “the 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, the purpose of forum non conveniens is to prevent the defendant 

from facing harassing and vexatious litigation out of all proportion to the plaintiffs’ 

convenience. From 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 

necessarily lead to unwarranted burdens or additional travel for Citigroup to depose 

those plaintiffs. The district court has broad discretion over the location of 

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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 depositions, as there 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 607 (collecting cases). All else being equal, the ratio of domestic to foreign 

plaintiffs does not necessarily have a bearing on Citigroup’s convenience.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 United States—such that reduced deference may be appropriate 

for all the plaintiffs. See Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 694–96

(9th Cir. 2009). But at this juncture, we see 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. 

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Rather than reduce or enhance the deference owed to domestic or foreign 

plaintiffs, some courts have conducted a separate forum non conveniens analysis for 

each group. A bifurcated 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 their appropriate deference on remand. But we note that—procedural 

issues aside—a split analysis might be problematic in some respects. If the domestic 

plaintiffs are permitted to move forward in the district court, then dismissing 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 countries. See In re Assicurazioni Generali S.p.A. Holocaust 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

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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 

these entities are not real parties-in-interest or that they otherwise lack standing 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).

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Our 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. 

The 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 impossible 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 discovery 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

We 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 pointed clearly toward dismissal, the threshold error on the deference 

owed to the domestic plaintiffs tainted its analysis. The error in effect switched the 

burden of persuasion and allowed Citigroup to obtain a forum non conveniens 

dismissal without presenting any evidence on these factors.

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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 1101

(quoting Burt, 218 F.2d at 357). Yet Citigroup opposed discovery and offered no 

evidence on the private interest factors. 

The 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. 

By 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. That

case arose from a plane crash in Scotland. See 454 U.S. at 238–39. The plane was 

subject to Scottish air traffic control and operated through a Scottish air taxi service, 

and the pilot and passengers were all Scottish subjects and residents. See id. at 239.

The Supreme Court held that, under these circumstances, the defendant’s burden to 

demonstrate private inconvenience was not particularly heavy; the defendant was 

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not required 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. At 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 it 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 relied on affidavits, including one that 

attested to the defendant’s witnesses and their testimony on certain topics, albeit in

broad strokes. See Piper Aircraft, 454 U.S. at 259 & 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. See 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 258–59. We therefore do not read

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Piper Aircraft as holding that any less information would have sufficed under the

circumstances.

6

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

heavier. As we 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 1101 (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 of 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 

liability 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 insufficient 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 witnesses 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 inconvenience 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 Interface 

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 of 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 

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We 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”). 

In complex commercial cases—with elaborate legal claims and allegationsinvolving

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) (affirming 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. 1998) (holding that 

the defendants, 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”). 

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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 

these unidentified witnesses would be critical to its case. Citigroup also asserted 

that its 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 identify some of these

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 them

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.

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Citigroup made some factual assertions in its motion, but it did so by either 

misconstruing the complaint or by contradicting the plaintiffs’ allegations without 

discrete evidentiary support. For example, Citigroup argued that “Mexico is where 

the cash advance contracts were negotiated and executed,” which implies that 

material evidence will be located there. The paragraph of the complaint to which 

Citigroup cited, however, alleges that “Citigroup, through Banamex, and 

Oceanografía entered into a Cash Advance Contract in September 2012.” Nowhere 

do the plaintiffs allege that the cash advance program was negotiated and executed 

exclusively in Mexico. Indeed, they 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. 

Even 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. The 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 an

affidavit from a corporate representative or otherwise explain why documents from 

that audit would not be available in the United States.

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Citigroup argued below that “Mexico is where [Oceanografía’s] alleged 

falsification of Pemex work estimates and authorizations took place.” This 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. The 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 the 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 contentions about the location of key evidence and witnesses may 

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

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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 concluded 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 courts must analyze 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 material 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 these 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 subsidiaries 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, could 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 would also 

mean that evidence of the fraudulent conduct would be accessible in the United States. 

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prove and disprove each element, and make a reasoned assessment about the location 

of relevant evidence.

There 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, 1306–07, 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 the

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 

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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 might 

be relevant and where they might be located.”). 

Even if we were to accept Citigroup’s reconstructed argument—that 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, based 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. Third, 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 

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record” on which it is “impossible to make a sound determination of relative 

convenience.” That requires us to remand for further development. See id. 

The district court erred in concluding that the “ease of access to evidence”

factor supported dismissal. That conclusion was based on unsupported findings 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 favors

dismissal. That 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

errors 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 trial.’”). 

D

The district court also concluded that the public interest factors weighed in 

favor of litigation in Mexico. Although Citigroup is the only named defendant, the 

case involved “four primary players, three of which are unquestionably Mexican 

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entities”—Banamex, Oceanografía, and Pemex. The court reasoned that Mexico 

“clearly has a substantial interest in this case being litigated in Mexico 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 the plaintiffs allege that Citigroup conducts substantial 

business in the Southern District of Florida and that two of its Miami-based 

employees audited the cash advance program after the scandal unfolded in Mexico.

There 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. The district court did not 

cite, for example, any administrative difficulties or docket congestion in the 

Southern District 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”). The United States has a stake in this litigation, and that should 

factor into the public interest analysis. See Republic of Panama, v. BCCI Holdings 

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(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 they 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) (“There 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 foreign 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. 

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V

We now turn to the discovery conditions that the district court imposed in its 

order, as the parties dispute their 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 dismissals, “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 257 n.25. The Supreme Court 

did not explain, however, how district courts should enforce discovery conditions as 

litigation proceeded abroad. Nonetheless, following the Piper Aircraft decision, it 

became common practice for courts to include stipulations, 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 have 

approved of these types of discovery conditions and have even held that the 

imposition of such conditions supported the finding of an adequate, alternative

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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 adequate 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 condition 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 the 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, 

we 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 that 

condition in case the district court again dismisses for forum non conveniens.

For starters, what 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. Dow 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).

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we have “emphasized” dismissals conditioned on compliance with U.S. discovery 

rules. Although we have sanctioned that type of condition, we have also approved 

of a condition that only required disclosure of “relevant” 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 “relevant” evidence is open-ended. If foreign law governs 

relevance, the condition subjects the parties to some uncertainty and to the 

idiosyncrasies of the foreign court, 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 ongoing obligations. But we have not given much 

more thought to what mechanisms, 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. What permits the district court to adjudicate discovery 

disputes in a case that it has already dismissed? Does the court need to retain some 

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sort of jurisdiction? And what happens if those disputes are also pending before a 

Mexican court?10

As noted, the district court included a “return jurisdiction” clause, which

permits 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. We have modified dismissal orders to add return jurisdiction 

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

assume jurisdiction. See Leon, 251 F.3d at 1316; King, 562 F.3d at 1384. But with

the understanding that a return jurisdiction clause is permissible, we still foresee

possible practical difficulties. 

As one commentator has explained, the efficacy of a return jurisdiction clause 

depends on a “herculean conception of [the] plaintiffs’ patience, litigiousness, and 

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

plaintiffs may not have the resources or appetite to refile and start anew in federal 

court, especially after protracted litigation abroad. That presupposes that the 

10 Other courts have noted some of these issues in passing. See In re Union Carbide Corp. Gas 

Plant Disaster at Bhopal, 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”).

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plaintiffs 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 Tul. 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). 

For plaintiffs who do have resources for further litigation, they 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 plaintiffs here, for example, might want to seek extremely broad 

discovery and then refile in the district court the moment that Citigroup withholds a 

document on relevance grounds.

Accordingly, on remand, the district court should consider whether a single 

breach would permit the plaintiffs to reinstitute their case in federal court, and

whether a breach must be material. If 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 concludes that the withheld documents

were relevant? That is, if the district court resumes jurisdiction and resolves a 

discovery dispute in the plaintiffs’ favor, could Citigroup agree to produce the 

withheld documents and then simply return to the Mexican court? Or does

Citigroup, like Julius Caesar, cross the Rubicon once it improperly withholds a

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relevant document? Without 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. 

VI

The 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. We therefore reverse and remand for 

further proceedings, including consideration of the United States’ interests under the 

public interest factors. 

The district court may in its discretion permit limited discovery, hold an 

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 findings that Mexico is an adequate and available 

forum, or that they would not be subject to undue inconvenience or delay if they had 

to reinstate their case in Mexico, those findings stand. We also leave in place the 

district court’s unchallenged findings 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. 

We do not address at this time whether the district court erred in its 

understandable attempt to ensure that Citigroup would provide adequate discovery 

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in Mexico. We also do not take any view on Citigroup’s alternative arguments for 

dismissal, which the district court did not reach.

REVERSED AND REMANDED.

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