[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-12806

________________________

D. C. Docket No. 0:17-cv-60027-UU

PETER J. NYGÅRD, NYGÅRD INTERNATIONAL PARTNERSHIP, and 

NYGÅRD, INC.,

Plaintiffs – Appellants,

versus

JOHN J. DIPAOLO and THE D&R AGENCY, LLC, 

Defendants – Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(October 10, 2018)

Before WILLIAM PRYOR and MARTIN, Circuit Judges, and HALL,* District 

Judge.

HALL, District Judge:

 * Honorable J. Randal Hall, United States District Judge for the Southern District of 

Georgia, sitting by designation.

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Plaintiffs appeal the district court’s decision granting Defendants’ motion to 

dismiss. The question on appeal is whether the district court abused its discretion 

by dismissing this case on forum non conveniens grounds. Having reviewed the 

record and the parties’ briefs, we affirm.

I. BACKGROUND

Plaintiff Peter J. Nygård is a Canadian citizen residing in the Bahamas who 

owns Plaintiffs Nygård, Inc., a Delaware corporation with its primary headquarters 

in New York, New York, and Nygård International Partnership, a Canadian 

business. Plaintiffs design women’s clothing which they sell throughout the 

United States.

The facts of this case largely surround a series of lawsuits that were initiated 

by and against Mr. Nygård. The first action was filed on March 9, 2016, in the 

Supreme Court of the Commonwealth of the Bahamas (the “Harassment Action”). 

The Harassment Action plaintiffs are Bahamian environmentalists, including Louis 

Bacon, Frederick Smith, and C.B. Moss, who claim that they were attacked by Mr. 

Nygård and his agents after the plaintiffs protested Mr. Nygård’s development of 

his Bahamian residence, Nygård Cay. Those attacks allegedly came in the form of 

acts of violence, such as: (1) attacking Mr. Smith in April 2013; (2) fire-bombing 

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Mr. Moss’s car in July 2013; and (3) plotting to murder Messrs. Smith and Bacon 

in February 2014.

In response to the Harassment Action, Mr. Nygård filed a separate lawsuit 

in the Bahamas on March 29, 2016 (the “Conspiracy Action”), alleging that the 

Harassment Action plaintiffs, among others, conspired to collect and file perjured 

testimony in the form of an affidavit that was prepared by Defendant John J. 

DiPaolo, a private investigator in Florida, and his investigative firm, Defendant the 

D&R Agency, LLC (“D&R”) (the “DiPaolo Affidavit”).

1

 

On January 16, 2015, Mr. Bacon, who is a plaintiff in the Harassment Action 

and a defendant in the Conspiracy Action, filed a lawsuit against Mr. Nygård for 

defamation in the Supreme Court of New York County, New York (the “New 

York Action”). Mr. Bacon asserted that he was the victim of a smear campaign in 

the Bahamas that was allegedly orchestrated by Mr. Nygård. On August 10, 2016, 

the New York Supreme Court dismissed the New York Action on forum non 

conveniens grounds, finding that the Bahamas was a more suitable forum. That 

order was subsequently reversed, however. See Bacon v. Nygard, 160 A.D.3d 565 

(N.Y. App. Div. 2018). 

In the present action, Plaintiffs allege that Mr. Bacon, who is not named as a 

defendant, hired Mr. DiPaolo and D&R, to find witnesses to provide perjured 

 

1 Mr. Nygård did not name Mr. DiPaolo or D&R as defendants in the Conspiracy Action. 

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testimony that could be used in the Harassment and New York Actions. 

Defendants in turn hired Livingston Bullard and Wisler Davilma, two Bahamian 

criminals, to make sensational statements that Mr. Nygård had engaged in criminal 

activities throughout the Bahamas. For example, Messrs. Bullard and Davilma 

testified that Mr. Nygård “prepared a hit list to murder persons . . . [and] paid 

Messrs. Bullard and Davilma to burn down a shop and automobile.” These 

statements were used as a foundation for the DiPaolo Affidavit which was then 

filed in the New York and Harassment Actions. Messrs. Bullard and Davilma 

subsequently recanted their statements and told Plaintiffs’ attorneys that they were 

hired by Mr. DiPaolo to make false statements against Mr. Nygård.

2

In addition to the false statements, Plaintiffs allege that Mr. Bacon hired 

Tazhmoye Lacy-Ann Cummings, Samantha Storr, and Philincia Cleare to extort 

funds from Plaintiffs. The three allegedly threatened to participate in Mr. Bacon 

and Defendants’ criminal enterprise if they were not each paid between $500,000 

and $800,000.

Plaintiffs claim that they have suffered serious financial harm due to 

Defendants’ criminal enterprise. In addition to the litigation costs incurred through

the Harassment and New York Actions, Plaintiffs claim that Defendants have

damaged Plaintiffs’ reputation throughout the United States. The damage to 

 

2 Despite this recantation, Messrs. Bullard and Smith later gave additional statements to 

Defendants.

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Plaintiffs’ reputation led to the loss of a longtime lending partner who severed ties 

with Plaintiffs, citing the negative media coverage surrounding the allegations 

against Mr. Nygård in the Harassment Action. 

Plaintiffs initiated this action on January 5, 2017, in the United States 

District Court for the Southern District of Florida, alleging that Defendants have 

engaged in a criminal enterprise, in violation of the Racketeer Influenced and

Corrupt Organizations Act (“RICO”) 18 U.S.C. § 1962, et seq., with the purpose of

spreading false information about Plaintiffs. Defendants subsequently moved to 

dismiss Plaintiffs’ complaint for forum non conveniens, or, in the alternative, for

the district court to abstain from hearing this matter while the Harassment and 

Conspiracy Actions proceed. The district court found that because Defendants 

agreed to submit themselves to the jurisdiction of the Bahamas, the Bahamas was 

an adequate alternative forum. The district court then balanced the private and 

public interest factors and concluded that those factors weighed in favor of

dismissal. The district court finally concluded that Plaintiffs would be able to 

reinstate their complaint in the Bahamas without undue prejudice or 

inconvenience. Accordingly, on May 22, 2017, the district court granted 

Defendants’ motion to dismiss on forum non conveniens grounds. Plaintiffs appeal 

the district court’s order. 

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II. STANDARD OF REVIEW

“The forum non conveniens determination is committed to the sound 

discretion of the trial court. It may be reversed only when there has been a clear 

abuse of discretion; where the court has considered all relevant public and private 

interest factors, and where its balancing of these factors is reasonable, its decision 

deserves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 

(1981). Abuse of discretion is “extremely limited” and “highly deferential.” 

Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283, 1288 (11th Cir. 

2009). “Thus, when employing an abuse-of-discretion standard, we must affirm 

unless we find that the district court has made a clear error of judgment, or has 

applied the wrong legal standard.” United States v. Frazier, 387 F.3d 1244, 1259 

(11th Cir. 2004). Notably, “the abuse of discretion standard of review recognizes 

that for the matter in question there is a range of choice for the district court and so 

long as its decision does not amount to a clear error of judgment we will not 

reverse even if we would have gone the other way had the choice been ours to 

make.” McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001).

III. DISCUSSION

In this appeal, Plaintiffs argue that the district court erred by refusing to 

allow them to engage in additional discovery, failing to afford substantial 

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deference to their choice of forum, and adopting an overly narrow interpretation of 

their complaint. Plaintiffs contend that these errors skewed the district court’s 

balance of the private and public interest factors in its forum non conveniens 

analysis.

A. Discovery

Plaintiffs complain that they were not given sufficient opportunity to engage 

in discovery to develop their claims. Specifically, Plaintiffs insist that additional

discovery was needed to reveal information about potential witnesses in the United 

States, including the location of Defendants’ alleged California confederates, who 

Plaintiffs now claim include private investigators that were tasked with carrying 

out Defendants’ criminal enterprise.3

 We review the district court’s denial of 

discovery for abuse of discretion. White v. Coca–Cola Co., 542 F.3d 848, 853 

(11th Cir. 2008). 

When a motion to dismiss is not confined to the face of the pleadings, the 

parties are sometimes allowed to engage in limited discovery. See, e.g., 

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978) (finding that 

discovery was appropriate “where issues arise as to jurisdiction or venue.”); Eaton 

v. Dorchester Dev., Inc., 692 F.2d 727, 729 (11th Cir. 1982) (“We have held that 

such jurisdictional discovery is not entirely discretionary, and this appears to be the 

 

3 This allegation appears nowhere in Plaintiffs’ complaint.

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better view.”). Nevertheless, “[s]uch discovery requests should not serve as 

fishing expeditions,” and are therefore only appropriate when a party demonstrates 

that it can supplement its allegations through discovery. Wolf v. Celebrity Cruises, 

Inc., 683 F. App’x 786, 792 (11th Cir. 2017) (affirming denial of jurisdictional 

discovery where request did not specify the information sought or explain how it 

would “bolster” jurisdictional allegations). Additionally, if there is a pending 

motion, a party must take reasonable efforts to warn the district court that more 

discovery is needed before that motion can be resolved. See United Tech. Corp. v. 

Mazer, 556 F.3d 1260, 1280–81 (11th Cir. 2009) (affirming dismissal where 

plaintiff “never formally moved the district court for jurisdictional discovery but, 

instead, buried such requests in its briefs . . . .”).

In the instant case, Plaintiffs contend that they served discovery regarding 

“critical facts” related to forum non conveniens on March 28, 2017, about ten days 

before Defendants filed their motion to dismiss and two months before the district 

court entered its order. If Plaintiffs believed Defendants had evidence that was 

critical to deciding the forum non conveniens issue, it was incumbent upon them to 

notify the district court about the evidence they sought and its potential impact on 

deciding Defendants’ motion. Yet, beyond a vague reference that there might be 

witnesses located in California, which was buried in a footnote in Plaintiffs’ 

response in opposition to Defendants’ motion to dismiss, Plaintiffs failed to take 

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such action. “The district court, therefore, did not so much deny discovery as it 

dismissed the case before discovery was taken. We cannot say that the district 

court erred,” Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 n.7 (11th Cir. 1999), 

much less abused its discretion.

B. Deference to Plaintiffs’ Choice of Forum

Moving on to the district court’s analysis of the forum non conveniens issue, 

Plaintiffs contend that the district court failed to afford substantial deference to 

their choice of forum when it balanced the private interest factors. When a 

plaintiff sues in his home forum, “it is reasonable to assume that this choice is 

convenient.” Piper Aircraft, 454 U.S. at 255-56. To overcome the presumption 

against disturbing the plaintiff’s choice of forum, this Circuit has long mandated 

that district courts must find “positive evidence of unusually extreme 

circumstances, and should 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.” La Seguridad v. Transytur Line, 707 

F.2d 1304, 1308 n.7 (11th Cir. 1983) (alterations adopted and internal quotation 

marks omitted). When the plaintiff sues in a foreign venue, on the other hand, the 

assumption of convenience is much less reasonable. Piper Aircraft, 454 U.S. at 

256. Therefore, a foreign plaintiff’s choice of forum deserves less deference. La 

Seguridad, 707 F.2d at 1307.

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The district court decided that because Plaintiffs, one of which is a United 

States corporation, were foreign to Florida, their choice of forum was entitled to 

less deference. Yet, to determine whether a party is suing in his home forum,

federal courts focus on the plaintiff’s country of origin, not the state in which he

resides. Kostelac v. Allianz Global Corp. & Specialty AG, 517 F. App'x 670, 673-

74 (11th Cir. 2013) (“When a United States citizen sues in a United States District 

Court, he is suing in his home forum.”); Aldana, 578 F.3d at1293 (“[T]he relevant 

forum for purposes of the federal [forum non conveniens] analysis is the United 

States as a whole.”). Because the district court based its decision on Plaintiffs’ 

out-of-state residence, we cannot support its finding that Plaintiffs’ choice of 

forum was entitled to less deference. 

Nevertheless, the district court subsequently explained that “even if 

Plaintiffs were entitled to substantial deference, the Court would still dismiss this 

case on forum non conveniens grounds for reasons set forth herein.” Plaintiffs 

contend that the district court merely referenced the correct standard and did not 

apply substantial deference to Plaintiffs’ choice of forum in its analysis. We 

cannot say that such an error warrants reversal under the facts of this case. In cases 

where we have reversed the district court for failing to give substantial deference to 

the plaintiff’s choice of forum, the district court failed to even apply a weak 

presumption in its analysis. SME Racks, Inc. v. Sistemas Mecanicos Para 

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Electronica, S.A., 382 F.3d 1097, 1103 n.9 (11th Cir. 2004) (“The presumption in 

favor of the plaintiff simply was not applied.”); McLane v. Los Suenos Marriott 

Ocean & Golf Resort, 476 F. App'x 831, 833 n.2, 833-34 (11th Cir. 2012) (“The 

district court mentioned the presumption against disturbing the plaintiffs' forum 

choice in its introduction to the order, but failed to mention the presumption at all 

in its application and balancing of the factors.”). In SME Racks, for example, the 

district court dismissed a complaint brought by a United States citizen on forum 

non conveniens grounds despite finding that the private interest factors were “at or 

near equipoise.” SME Racks, 382 F.3d at 1102. We reversed, reasoning in part 

that there was no: 

basis to speculate that the district court simply failed to mention 

the presumption in its application section, but nevertheless 

considered the presumption and determined that the presumption 

was defeated. If any presumption exists in favor of the plaintiffs' 

choice . . . then by definition the plaintiffs' choice must win if all 

other factors are equal. 

Id. at 1103.

In this case, unlike SME Racks or McLane, the district court at least applied

a weak presumption when it balanced the private interest factors. Nygård v. 

DiPaolo, 2017 WL 4303825, at *12 (S.D. Fla. May 22, 2017) (“[W]hile the Court 

accords Plaintiffs’ choice some deference, the overall balance [of the private 

interest factors] tips toward the Bahamas.”). Thus, we are not left to speculate as 

to whether a stronger presumption would have altered the district court’s analysis. 

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Cf. McLane, 476 F. App’x at 834 (“Because it is unclear whether the district court, 

applying the presumption correctly, would conclude that dismissal is nevertheless 

appropriate, we reverse and remand for reconsideration.”). Because the district 

court gave some deference to Plaintiffs’ choice of forum and made clear that 

additional deference would not change its analysis, reversal is inappropriate. 

C. Private Interest Factors

The district court proceeded to balance the private interest factors and found 

those factors weighed in favor of dismissal. Private interest factors “pertain to the 

interests of the participants in the litigation.” Tazoe v. Airbus S.A.S., 631 F.3d 

1321, 1331 (11th Cir. 2011). The Supreme Court has provided a list of factors that 

courts should consider when deciding a forum non conveniens issue, including:

[R]elative ease of access to sources of proof; availability of 

compulsory process for attendance of unwilling, and the cost of 

obtaining attendance of willing, witnesses; possibility of view of 

premises, if view would be appropriate to the action; and all other 

practical problems that make trial of a case easy, expeditious and 

inexpensive. 

Piper Aircraft, 454 U.S. at 241 n.6 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 

501, 508 (1947)). 

1. Relative Ease of Access to Sources of Proof and Availability of 

 Compulsory Process

The record supports the district court’s decision that access to sources of 

proof “weighs strongly in favor of dismissal.” Plaintiffs complain that the district 

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court adopted an overly narrow construction of their complaint and consequently 

gave little weight to witnesses who reside in the United States. Plaintiffs insist that 

according to their theory of the case, the Bahamas is only one part of a larger

criminal enterprise that was primarily located in New York and Florida. Yet, the 

district court reasonably found that much of Defendants’ alleged misconduct took 

place in or was at least directed toward the Bahamas. The Bahamas is where 

Defendants met and hired Messrs. Wisler and Davilma, who are both Bahamian 

residents, who provided the statements for the DiPaolo Affidavit. Additionally, the 

Bahamas is home to other potentially relevant witnesses, including Neil Hartnell, 

who made an allegedly false statement that was used in the DiPaolo Affidavit, and 

Messrs. Smith and Moss, who are both plaintiffs in the Harassment Action.

4 

Furthermore, although the district court may have mischaracterized the 

scope of Plaintiffs’ complaint, it did consider the importance of witnesses in the 

United States, including Defendants, Defendants’ employees, Mr. Bacon, Mr. 

 

4 Plaintiffs take issue with the district court’s conclusion that Messrs. Hartnell, Smith, and Moss 

were potentially relevant witnesses. Plaintiffs claim that because Messrs. Hartnell, Smith, and 

Moss did not attempt to influence any witnesses against Plaintiffs, they have no valuable 

information. However, Messrs. Smith, Hartnell, and Moss all claim to be victims of an alleged 

campaign of violence that Plaintiffs insist was the fabrication of Defendants’ criminal enterprise. 

At the very least, their testimony appears valuable to Defendants’ ability to rebut Plaintiffs’ 

claims. See Tazoe, 631 F.3d at 1332 (“Our analysis must contemplate more than [Plaintiffs’] 

theories of liability; we must also consider [Defendants'] theories.”).

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Bacon’s lawyers, Jack Palladino, and Sarah Ness.

5

 Defendants, however, have 

made clear that they are willing to travel to the Bahamas. Likewise, Mr. Bacon is 

currently engaged in litigation against Mr. Nygård in a Bahamian court. The

district court reasonably concluded that these witnesses would be available in the 

Bahamas and therefore were afforded less weight when balancing the 

consequences of trying this case in the Bahamas as opposed to the United States. 

As for Mr. Palladino and Ms. Ness, who Plaintiffs claim are California

investigators hired by Defendants, Plaintiffs failed to identify these witnesses in 

their complaint or briefing in response to Defendants’ motion to dismiss. While 

these names were included in Plaintiffs’ initial disclosure, it is not the district 

court’s duty to speculate about the relevance of unidentified evidence.

6

 Thus, the 

only witnesses in the United States who were entitled to much weight, for the 

purposes of forum non conveniens, are Mr. Bacon’s lawyers in New York. 

Comparing Mr. Bacon’s lawyers to the witnesses located in the Bahamas, we 

cannot conclude that the district court abused its discretion by finding that the 

Bahamas offers superior access to sources of proof.

With the exception of Defendants, who are willing to appear in the 

Bahamas, the Southern District of Florida lacks the authority to compel the

 

5 Plaintiffs have not challenged the district court’s finding that Defendants’ employees should 

not be “accord[ed] great weight.” When an appellant fails to argue an issue, that issue is 

abandoned. United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998). 

6 This reasoning is equally applicable to Ms. Patricia Scandariato, a court reporter who recorded 

the statements made by Mr. Bullard in Miami, Florida. 

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presence of most of the witnesses in this case. Mr. Bacon and his lawyers both 

reside outside of Florida and the 100 mile bulge prescribed by Federal Rule of 

Civil Procedure 45(c) as do all of the Bahamian witnesses. Therefore, none of 

these witnesses are subject to the district court’s compulsory process. Plaintiffs 

protest that any valuable information these witnesses have can be obtained through 

depositions or interrogatories. As an initial matter, we note the strong preference 

for live testimony where, as here, fraud and subjective intent are elements of the 

claim. See Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 952 (1st Cir. 1991). The 

availability of compulsory process is especially important to secure the attendance 

of Messrs. Bullard and Davilma, who Plaintiffs allege were instrumental to 

Defendants’ criminal enterprise. Messrs. Bullard and Davilma have apparently 

recanted their testimony at least two times before Plaintiffs initiated this action. 

Demeanor evidence will therefore be invaluable in assessing Messrs. Bullard and 

Davilma’s credibility. Under these facts, depositions and written answers to 

interrogatories would be a poor substitute for live testimony. Because live 

testimony will be essential to both parties and the Southern District of Florida lacks 

a compulsory process to guarantee the attendance of many of the witnesses in this 

case, this factor also favors dismissal.7

 

7 Plaintiffs also take issue with the district court’s finding that “[o]ther undiscovered percipient 

witnesses to Nygård’s and his agents’ misconduct . . . are also likely to be in the Bahamas.” We 

agree that this was an error. Because Defendants’ enterprise was operated out of Florida and 

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2. Cost of Procuring Willing Witnesses

The district court also found that the parties would save considerable sums 

by obtaining testimony from Bahamian witnesses in the Bahamas rather than 

requiring those witnesses to fly to the United States. Plaintiffs contend that the 

district court erred by considering this factor because Defendants did not submit 

evidence regarding travel costs. We find no error in the district court’s common 

sense finding that forcing Bahamian witnesses to travel to the United States would 

impose a cost that could otherwise be avoided if this dispute is litigated in the 

Bahamas. 

Plaintiffs also claim that the district court was required to consider the cost 

of requiring witnesses in the United States to travel to the Bahamas as opposed to 

Florida. The district court did, however, acknowledge that Plaintiffs did not 

identify any witnesses, besides Defendants, who reside in Florida. Requiring the 

witnesses in the United States, who are mostly residents of New York, to attend 

trial in the Bahamas would not impose a substantially greater burden than requiring 

them to travel to Florida. See Goldstein v. Hard Rock Cafe Int'l (USA), Inc., 519 

F. App'x 653, 655 (11th Cir. 2013) (affirming district court’s conclusion that there 

was little difference in travel costs by making witnesses fly from New Jersey to 

 

New York, it seems just as likely that undiscovered witnesses might be revealed in the United 

States. Nevertheless, even ignoring the possibility of undiscovered Bahamian witnesses, for the 

reasons stated above, we still cannot find that the district court abused its discretion when it 

concluded that compulsory process weighs in favor of dismissal.

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Florida as opposed to New Jersey to the Dominican Republic). Accordingly, 

comparing the cost of flying Bahamian witnesses to the United States to the cost of

flying witnesses from New York to the Bahamas, as opposed to Florida, the district 

court’s finding that cost of attendance weighs in favor of dismissal was not a clear 

abuse of discretion. 

3. Possibility of Viewing the Premises

The district court briefly considered the value of viewing the premises. It

found that the possibility of viewing the premises where Defendants’ alleged 

criminal enterprise engaged in misconduct could be valuable but it did not accord 

this factor much weight. Plaintiffs maintain that according any weight to this 

factor was an error because this “is not a tort case where the layout of a particular 

area may be relevant.” Given that the misconduct in this case involved allegations 

of violence and at least two incidents of property damage, we cannot find that there 

is zero chance that a view of the premises will be helpful in trying this case. The 

misconduct that occurred in the United States, by comparison, mostly involved

phone calls, bank transfers, court filings, and witness statements, which can most 

easily be proven by documentary evidence and testimony and would therefore not 

be helped by a view of the premises. We discern no abuse of discretion in 

affording some weight to this factor in favor of dismissal.

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4. Additional Factors

In addition to the non-exhaustive list of private interest factors identified by 

the Supreme Court, courts are “free to consider any number of other practical 

problems that make trial of a case in a particular forum an undue burden upon 

either party.” Aldana, 578 F.3d at 1302. Here, the district court found that judicial 

economy, the risk of inconsistent results, and the cost of domesticating a Bahamian 

judgment were all practical problems that further complicated trying this case in 

the United States.

Regarding judicial economy, the district court found that the existence of 

parallel proceedings in the Bahamas weighs in favor of dismissal. As previously 

mentioned, in the Conspiracy Action, Mr. Nygård alleges that Mr. Bacon, with 

help from Defendants, conspired to file perjured information in the Harassment 

Action. Though we accept that Plaintiffs’ allegations in this case are not limited to 

filings in the Harassment Action, Defendants’ role in the Conspiracy Action is 

strikingly similar to its role in the present case. Plaintiffs insist that the existence 

of parallel litigation is not a relevant factor in a forum non conveniens analysis. 

Yet we have previously found that concurrent litigation can be a practical problem 

that is properly considered when balancing the private interest factors. See King v. 

Cesna Aircraft Co., 562 F.3d 1374, 1384 (11th Cir. 2009) (affirming district 

court’s finding “that some Plaintiffs have already litigated and continue to litigate a 

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similar suit in Italy” weighed in favor of dismissal); see also Sinochem Int’l Co. v. 

Malaysia Int’l Shipping Corp., 549 U.S. 422, 424 (2007) (describing the case as “a 

textbook case for immediate forum non conveniens dismissal,” where litigation 

was already pending in China). If this case is allowed to proceed in the Bahamas,

Defendants can attempt to consolidate these matters, saving time and resources for 

both parties. See RULES OF THE SUPREME COURT OF THE BAHAMAS, OR. 4, R. 1.

Such a consideration conforms to the overarching purpose of the forum non 

conveniens doctrine. 

The district court also found that allowing this case to proceed in the United 

States would create the possibility of inconsistent results, as the Bahamian court 

would eventually address the veracity of the DiPaolo Affidavit in the Conspiracy 

Action. Again, Plaintiffs complain that their case is not limited to the DiPaolo

Affidavit and does not require proving that Defendants facilitated perjury. 

However, one of the two predicate offenses in Plaintiffs’ RICO claim is 18 U.S.C. 

§ 1956, a money laundering statute wherein Plaintiffs must demonstrate that 

Defendants violated Bahamian law. According to Plaintiffs’ complaint, one of the 

laws that Defendants allegedly violated is Bahamian Penal Code Chpt. 84, Title 

xxvii, §§ 423, 424, which is a perjury statute. Although an inconsistent ruling is 

not a foregone conclusion, there is a risk that a United States and Bahamian court 

will reach opposite results on whether statements made in the DiPaolo Affidavit 

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were actually false. Given the inconvenience to Plaintiffs of having to abide by 

inconsistent rulings, this factor may not be critical but it was not unreasonable to

afford it some weight.

8

Finally, the district court decided that the cost of domesticating a judgment 

also weighed in favor of dismissal because the Florida Enforcement of Foreign 

Judgments Act, Florida Statute (“FEFJA”) §§ 55.601-607, provides a convenient 

mechanism for enforcing foreign judgments against Florida residents. According 

to the FEFJA, once a plaintiff records a foreign judgment “in the office of the clerk 

of the circuit court of any county [in Florida],” it has the same effect as a judgment 

issued by a Florida court. See FLA. STAT. 55.503(1). Plaintiffs claim that the 

district court conflated the ability to enforce a judgment with the inconvenience of 

having to do so. Though we agree that inconvenience of domesticating a 

judgment, which would be unnecessary if this case was tried in the United States,

should have weighed against dismissal, this factor does not require reversal 

because the inconvenience to Plaintiffs is minimal. 

As explained above, the district court considered all of the relevant private 

interest factors and found that they weighed in favor of dismissal. We do not find 

 

8 Plaintiffs also object to the district court’s consideration of an injunction allegedly filed in the 

Harassment Action, demanding that Mr. Nygård abandon his claims in the present case. 

Plaintiffs complain that considering such actions could incentivize frivolous foreign filings. 

While we sympathize with Plaintiffs’ concerns, we cannot find that it was an abuse of discretion 

to at least give some weight to the possibility that Mr. Nygård might be enjoined from continuing 

to participate in this case.

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that the district court’s ultimate conclusion is unreasonable. This is not to say that

conclusion was the only reasonable one, or that another court could not have found 

the United States was the appropriate forum. Instead, we only find that, with the 

exception of the inconvenience of having to domesticate a foreign judgment, the 

district court could reasonably find that the private interest factors in this case 

weigh in favor of dismissal, even after assigning substantial deference to Plaintiffs’ 

choice of forum. 

D. Public Interest Factors

The district court proceeded to balance the public interest factors and found 

that most of these factors also weighed in favor of dismissal. Public interest 

factors “pertain to the relative interests of the two fora.” Tazoe, 631 F.3d at 1333. 

The public interest factors identified by the Supreme Court include:

[T]he administrative difficulties flowing from court congestion; the 

local interest in having localized controversies decided at home; 

the interest in having the trial of a diversity case in a forum that is 

at home with the law that must govern the action; the avoidance of 

unnecessary problems in conflict of laws, or in the application of 

foreign law; and the unfairness of burdening citizens in an 

unrelated forum with jury duty.

Piper Aircraft, 454 U.S. at 240 n.6 (internal quotation marks omitted).

Regarding court congestion, the district court found that the docket 

congestion of the Southern District of Florida favored dismissal. The district court 

did not, however, consider the docket congestion of the Supreme Court of the 

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Commonwealth of the Bahamas. Docket congestion considers the relative speed at 

which a case will be resolved and therefore necessarily requires a comparison. 

See, e.g., Mercier v. Sheraton Int'l, Inc., 935 F.2d 419, 428 (1st Cir. 1991) 

(directing “a comparative determination of where the case can most quickly be 

resolved, rather than simply rely[ing] on the state of [the district court's] own 

docket.”); Gates v. Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984)

(same). Accordingly, even though the district court did not accord this factor much 

weight, we cannot support its conclusion that the administrative difficulties

flowing from docket congestion support dismissing this case.

Moving on to the second factor, the district court also concluded that the 

Bahamian interest in this case was greater than the United States without 

considering the “strong federal interest in making sure that plaintiffs who are 

United States citizens generally get to choose an American forum for bringing 

suit.” See Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1311 (11th Cir. 2002). 

Additionally, the district court reasoned that the Bahamian interest in this case was 

paramount because Plaintiffs’ allegations involve a fraud on the Bahamian court in 

the form of the DiPaolo Affidavit. This conclusion ignores that the DiPaolo 

Affidavit was also filed in the New York Action, giving the United States an equal 

interest in deciding this case. Thus, we cannot find that the local interest in this 

case weighs in favor of the Bahamas.

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Despite the district court’s erroneous findings with respect to the first and 

second public interest factors, we nevertheless find that the district court’s 

conclusion that the public interest factors weigh in favor of dismissal was not an 

abuse of discretion. Although the district court did not consider judicial economy 

in its analysis of the public interest factors, the possibility of avoiding duplicative 

litigation is a cognizable interest, distinct from the convenience to the parties, 

which weighs in favor of dismissal. In re: Howmedica Osteonics Corp., 867 F.3d 

390, 402 n.7 (3d Cir. 2017) (“[W]e clarify that practical problems that make trial of 

a case easy, expeditious, and inexpensive represent a private interest, as the 

Supreme Court stated in Atlantic Marine [Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49 

(2013)] and as we have often stated in the forum non conveniens context, . . . we 

acknowledge judicial economy considerations to be a distinct, cognizable public 

interest.” (citations omitted)); see also Am. Family Life Assur. Co. v. Blue Cross 

of Fla., Inc., 486 F.2d 225, 228 (5th Cir. 1973) (“[A] judgment which is correct in 

ultimate effect will not be disturbed on appeal even if the lower court relied on the 

wrong ground or gave an untenable reason for its decision[.]”). Likewise, we have 

previously recognized that the possibility of inconsistent rulings with foreign 

countries raises international comity concerns that should be considered in the 

forum non conveniens analysis. See Esfeld, 289 F.3d at 1312. As previously 

explained, allowing this case to proceed in the United States creates a risk of an 

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24

inconsistent outcome with the Conspiracy Action in the Bahamas. Hence, though 

the district court’s analysis was problematic, its ultimate conclusion that the public 

interest factors in this case favor dismissal was not an abuse of discretion. 

IV. CONCLUSION

For the reasons set forth above, we must affirm the district court’s decision 

to dismiss this case for forum non conveniens. Though the district court made 

mistakes in its analysis of the private and public interest factors, the cumulative 

effect of those errors does not rise to the level of an abuse of discretion.

Accordingly, the district court’s order is AFFIRMED.

Case: 17-12806 Date Filed: 10/10/2018 Page: 24 of 28 
MARTIN, Circuit Judge, dissenting:

I respectfully dissent from the Majority’s decision to affirm the District 

Court’s dismissal of the plaintiffs’ case on grounds of forum non conveniens. This 

federal law suit was brought by three plaintiffs, one a U.S. citizen, against two 

defendants, both of whom appear to be U.S. citizens as well.1

 Yet in denying 

plaintiffs access to their chosen venue of the U.S. federal courts, the District Judge 

dismissed the plaintiffs’ lawsuit under the discretionary doctrine of forum non 

conveniens. The Majority acknowledges that the District Court made errors in 

reaching its decision. Maj. Op. at 24. Under this Court’s precedent, I believe 

those errors constitute an abuse of discretion. Unlike the Majority, I would not 

reweigh the interests balanced in a forum non conveniens analysis to determine if 

the District Court’s result can be reached another way. I would remand this case 

so the District Court could apply the proper standard in the first instance.

The district court failed to give the required strong presumption in favor of 

plaintiffs’ choice of forum. SME Racks, Inc. v. Sistemas Mecanicos Para 

Electronica, S.A., 382 F.3d 1097, 1099 (11th Cir. 2004). Before dismissing a case 

 1 One of these Defendants is a limited liability company, whose citizenship is determined, 

in turn, by the citizenship of its members. Rolling Greens MHP, L.P. v. Comcast SCH Holdings 

L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam). The District Court referred to only

the company’s principal place of business. Nygard v. DiPaolo, No. 0:17-CV-60027-UU, 2017 

WL 4303825, at *1 (S.D. Fla. May 23, 2017).

 25

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on grounds of forum non conveniens, courts in this Circuit are required to balance, 

among other things, certain private and public interests involved in the litigation. 

Wilson v. Island Seas Invs., Ltd., 590 F.3d 1264, 1269 (11th Cir. 2009). This 

balancing requires the court to identify those interests weighing in favor of 

litigating the case in a domestic forum; identify those competing interests that 

weigh in favor of litigating the case in a foreign forum; then balance the two. Id. 

In this Circuit, the relevant domestic forum for this balancing analysis is “the 

United States as a whole.” Aldana v. Del Monte Fresh Produce N.A., Inc., 578 

F.3d 1283, 1293 (2009). But in this case, instead of using the United States as a 

whole, the District Court used the State of Florida as the relevant domestic forum. 

It was this mistake that led the District Court to wrongly decide that Plaintiff 

Nygård, Inc., which is a citizen of Delaware and New York, was a foreign plaintiff. 

And this mistake in turn caused the court to give Nygård, Inc.’s choice of forum 

less deference. Thus, the District Court violated the rule requiring “the strong 

presumption that a United States citizen will not be ousted from the courts of this 

country.” SME Racks, 382 F.3d at 1099. This court has expressly held that the 

failure to give this presumption to a U.S. plaintiff’s choice of forum is an abuse of 

discretion. Id. I would reverse based on this error alone.

The Majority says reversal is not warranted because the District Court gave 

“some deference” to the plaintiffs’ choice of forum, insofar as that court said more 

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deference would not have changed its decision. Maj. Op. at 12. However, 

plaintiffs’ choice of forum was entitled to more than “some” deference. Courts 

owe “some” deference to the choice of forum of any plaintiff in a forum non 

conveniens analysis, regardless of its citizenship. See Piper Aircraft Co. v. Reyno, 

454 U.S. 235, 255 n.23, 102 S. Ct. 252, 266 n.23 (1981). With a U.S. plaintiff, 

however, courts owe more deference. Id.; Leon v. Millon Air, Inc., 251 F.3d 1305, 

1311 (11th Cir. 2001) (noting a stronger presumption applies in cases brought by 

domestic plaintiffs and a weaker presumption applies in cases brought by foreign 

plaintiffs). In light of the requirement that courts give more than some deference 

to a U.S. plaintiff’s choice of forum, some deference is not enough.

In giving the proper level of deference and strength of presumption, a court 

seeking to oust a U.S. citizen from the federal courts faces a high bar. See SME 

Racks, 382 F.3d at 1099. I recognize that this District Court did mention the 

standard it should have applied, but only at the end of a lengthy footnote, saying:

“[E]ven if Plaintiffs were entitled to substantial deference, the Court would still 

dismiss this case on forum non conveniens grounds for reasons set forth herein.” 

Nygard, 2017 WL 4303825, at *7 n.6. And the “reasons set forth herein” did not 

meet the standard required in our Circuit. District Courts must “require positive 

evidence of unusually extreme circumstances” and “be thoroughly convinced that 

material injustice is manifest before exercising any such discretion as may exist to 

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deny a United States citizen access to the courts of this country.” See Wilson, 590 

F.3d at 1270 (quotation marks omitted). When the presumption in favor of the 

plaintiffs’ choice of forums applies, dismissal is proper only where a court finds 

that “trial in the chosen forum would be unnecessarily burdensome for the 

defendant or the court.” Id. (emphasis added) (quoting Piper Aircraft, 454 U.S. at

255 n.23, 102 S. Ct. at 266 n.23). Nowhere did this District Court demonstrate 

why this case involves such exceptional concerns. 

As I read it, the Majority’s own analysis shows why remand is necessary. 

The Majority opinion revisits nearly every decision the District Court made. It 

notes errors in the District Court’s assessments along the way, then bases its 

decision on a public interest factor never considered by the District Court. Maj. 

Op. at 9–24. “[T]he proper role of the court of appeals is not to reweigh the 

equities or reassess the facts but to make sure that the conclusions derived from 

those weighings and assessments are [] sound and supported by the record.” 

Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10, 100 S. Ct. 1460, 1466 

(1980). I think the better course would be for the District Court do the proper 

analysis in the first instance. And if the District Court had done the proper 

analysis, I expect this case would have stayed in the U.S. District Court of 

plaintiffs’ choosing.

I respectfully dissent.

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