Before Wagner, Chief Judge, Steadman and Ruiz, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
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Appeal from the Superior Court of the District of Columbia (Hon. Linda Turner Hamilton, Trial Judge)
Submitted December 16, 1998
This is an appeal from an order of the trial court dismissing a complaint on the ground of forum non conveniens. Although we give the trial court significant deference on such discretionary rulings, we reverse the order of dismissal. We conclude that the trial court applied an incorrect legal standard and relied upon facts not in the record in fashioning its ruling. Furthermore, our examination of the relevant factors leads us to conclude that on this record it would be an abuse of discretion to dismiss the suit for forum non conveniens in favor of litigation in Portugal. We vacate the order of dismissal and remand for a trial on the merits.
Plaintiff-appellant, Maria Abrantes Coulibaly, a dual citizen of Angola and Portugal, brought suit in the Superior Court of the District of Columbia alleging breach of contract and conversion against appellee, Assis V. Malaquias, a dual citizen of Angola and Canada. This highly disputed case arises out of an alleged oral agreement between the litigants pursuant to which Coulibaly made a series of payments totaling $60,000 to Malaquias to invest in real estate and in a business venture. According to Coulibaly, the agreement was made in Portugal in April-May of 1994, when Coulibaly met Malaquias, a distant relative, in Lisbon and discussed with him her plans to move to the Washington, D.C. area. According to Coulibaly, under the terms of the agreement, she agreed to send monies from time to time to Malaquias in Washington, D.C. totaling $100,000. That money would be used to secure a $1,000,000 loan which Malaquias was to use in part to buy a townhouse for her in the area (as he represented to her that he was authorized to perform real estate transactions in D.C.), and, in part, to invest on her behalf in a business which Malaquias had with his brother in Canada. In his affidavit, Malaquias denies all of Coulibaly's claims, alleging that the money he received was a gift from Coulibaly, who was trying to involve him in a romantic relationship, and that the lawsuit is retaliatory because he did not return her affection.
As Malaquias characterizes it, both parties are "globe-trotting" individuals with ties to a number of nations. For approximately three years before the United States established diplomatic relations with Angola, Malaquias was the director of the Angola Institute, an agency of the Angolan government, with offices located at 1200 G Street, N.W., Washington, D.C. He left his post there sometime after November 1994, when the United States resumed formal diplomatic relations with Angola. *fn1
Coulibaly has lived in Angola, Portugal, Brazil and Switzerland. She was formerly the Director of the Foreign Investment Bureau of the Government of Angola and taught economics and commercial law at an Angolan university. She came to the United States in 1994 to study English and to further the legal degree she obtained in Lisbon.
At the time of the alleged breach and conversion, Coulibaly and Malaquias both lived in Northern Virginia. However, as is often the case in an integrated metropolitan area, Malaquias worked in the District of Columbia and Coulibaly planned to study at Georgetown University, also in the District.
Although the parties agree on very little, both parties are in accord that Coulibaly made wire transfers in the amounts of $30,000 on June 15, 1994, and $15,000 on September 1, 1994, from her bank in Geneva, Switzerland, into Malaquias' Citibank account in the District of Columbia. Coulibaly directed the transfers while she was in Portugal. During the first four months of her arrival in the United States, until approximately January of 1995, the parties engaged in a number of transactions whereby Coulibaly allegedly gave Malaquias different sums to arrange for the payment of her tuition at Georgetown, and to pay for the purchase of a townhouse, an apartment for her daughter and furniture. The parties have stipulated that, in addition to the wire transfers, Coulibaly gave Malaquias three personal checks in the amounts of $1,500, $5,000, and $10,000. *fn2
B. Motions for Summary Judgment
Coulibaly filed a motion for partial summary judgment for conversion of $57,765 (the $60,000 sent by wire transfer and personal check plus the $1,500 check less a credit for certain expenditures made by Malaquias on Coulibaly's behalf). Along with his opposition to Coulibaly's summary judgment motion, Malaquias also filed a cross-motion for summary judgment arguing that dismissal on the basis of forum non conveniens was proper because the claim arose in Portugal, which "has far more substantial contacts with plaintiff's claim than does the District." *fn3 Malaquias claimed that "a trial in Portugal would be easier, more expeditious and less expensive than a trial in the District of Columbia because the cause of action took place in Portugal, the witnesses to the alleged contract reside outside the United States, the Court's subpoena power would not be effective, and any judgment would be unenforceable outside the United States." He contended that Portuguese law would be applicable to this action. Malaquias argued that because there was a greater nexus with Portugal, the courts of the District of Columbia and its citizens should not be burdened with this litigation.
Coulibaly responded that the District of Columbia was the more appropriate forum and pointed to the following factors in support of her position: 1) Malaquias maintains a business office and a bank account in the District of Columbia and, although he spends time in Canada, has a residence in Virginia; 2) Coulibaly lives in nearby Virginia; 3) Coulibaly's claim stemming from an initial Discussion in Portugal is based on an agreement which was reaffirmed by the parties in the District in September of 1994; 4) the funds in question were deposited into a bank account located in the District of Columbia; 5) of the seven witnesses on Coulibaly's witness list, three reside in the Washington metropolitan area (Coulibaly, Ambassador Dos Santos Franca, and Agostinho Santos); two witnesses reside outside of the country but are willing witnesses who will not require compulsory process at trial (Coulibaly's husband, who lives in Switzerland, and her brother, who lives in Portugal); 6) compulsory process would be more easily available and less costly in the District than in Portugal; 7) judgment can be enforced in the District of Columbia because Malaquias has a bank account with approximately $15,000 here; and 8) there is no evidence in the record of any attempt by Coulibaly to vex or harass Malaquias by choosing this forum.
Coulibaly noted that there need be no concern about the unfairness of imposing the burden of jury duty on citizens of this forum because neither party had requested a jury. She argued that the District of Columbia has more substantial contacts with the litigation than does Portugal because the District is where the express oral contract was reaffirmed in September of 1994, where the money was deposited, where she made repeated entreaties that Malaquias sign a written contract, where the oral contract was rescinded, where Coulibaly asked that appellee return her money, and where the conversion took place. Coulibaly further argued that neither the laws of Portugal nor Canada are implicated in the action. Finally, she argued that no alternate forum was realistically available.
In a brief written order, the trial Judge noted all of the factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), but without expressly applying them to the facts of this case. It assumed, without analysis or explanation, that "plaintiff's claim has arisen in another jurisdiction which has more substantial contacts with the cause of action." Relying on the burden-shifting language in Mills v. Aetna Fire Underwriters Ins. Co., 511 A.2d 8 (D.C. 1986), it then concluded that, after reviewing the motions and the record, "plaintiff has failed to make the necessary showing." The court reached its Conclusion noting that: 1) neither party nor any of the witnesses reside in the District of Columbia; 2) regardless of which version of the story one accepts, the lawsuit began in Portugal and the money was wired from Portugal; 3) the principal thrust of the defense is that the lawsuit is intended to harass the defendant; 4) if plaintiff prevails, the judgment could not be enforced by the Superior Court; 5) it rejected Coulibaly's "attempts to convert defendant's purely business contacts with the District into contacts that give rise to localized interests that this court or community should resolve;" and 6) "the fact that the funds in question have been placed in a local bank two years ago does not help plaintiff to demonstrate why this litigation should remain in this jurisdiction." The court remarked that because neither party had raised the issue of whether an alternative forum was available to plaintiff, it would make the dismissal conditioned on the "fact that an alternative forum is available." *fn4