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Nixon Peabody LLP v. Beaupre

February 07, 2002


Appeal from the Superior Court of the District of Columbia (CA-3020-00) (Hon. Stephanie Duncan-Peters, Trial Judge)

Before Ruiz and Reid, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor, Senior Judge

Argued November 1, 2001

In a complaint filed in Superior Court alleging breach of contract, breach of fiduciary duties, and other tortious acts, appellee Lawrence K. Beaupre, a former editor of The Cincinnati Enquirer newspaper, sued the Enquirer, Gannett Satellite Network, and other parties for actions, which he asserts, ultimately caused the unlawful termination of his employment and other consequential injuries. This appeal is from a denial of a joint motion to dismiss the action on the basis of forum non conveniens. *fn1 Appellants contend that the trial court erred by giving undue deference to the choice of forum of a non-resident plaintiff; disregarding the factual evidence that nearly all material witnesses reside in Ohio; holding that the District has a strong interest in this case; and engaging in an unnecessary and inappropriate conflict-of-laws analysis. We affirm.

I. Factual Background

For present purposes, the allegations of the complaint must be accepted as true. Blake v. Professional Travel Corp., 768 A.2d 568, 569 (D.C. 2001). Appellee Beaupre was vice president and editor of The Cincinnati Enquirer (Enquirer), an Ohio newspaper owned by Gannett Co., Inc. (Gannett). Gannett is a Delaware corporation with headquarters in Arlington, Virginia and operations nationwide. Two Enquirer journalists, Michael Gallagher (Gallagher) and Cameron McWhirter (McWhirter), conducted a year-long investigation into the business practices of Chiquita Brands International, Inc. (Chiquita). Chiquita is a New Jersey corporation with its principal place of business in Cincinnati, Ohio. Chiquita threatened to sue the Enquirer as early as August 24, 1997. Thereafter, Gannett retained the services of Nixon Peabody, a law firm with offices in Washington, D.C. Prior to publication, appellee provided drafts of a series of articles written by Gallagher and McWhirter for review. The articles were reviewed by Gannett executives, counsel in Arlington, and Nixon Peabody attorneys in Washington. The drafts reviewed by counsel contained excerpts of Chiquita voice mail messages, obtained by Gallagher. These excerpts were included in the final version of the articles. Appellee discussed questions surrounding the articles with Gannett executives, in-house counsel, and Nixon Peabody attorneys. On May 3, 1998, the Enquirer published articles regarding Chiquita.

Following publication of the articles, litigation was again threatened. As a consequence, Gannett and Chiquita entered into settlement discussions. Chiquita was represented by the Washington office of Kirkland & Ellis. Gannett was represented by Nixon Peabody, led by Robert C. Bernius (Bernius), and Gannett's in-house counsel. Ultimately, Gannett fired Gallagher and a settlement agreement was executed on June 27, 1998. The parties to the agreement were Chiquita, Gannett, Gannett Satellite, Enquirer, McWhirter, and appellee. Chiquita withdrew its threat of litigation in exchange for a public apology, monetary benefits, and an agreement that appellee and McWhirter would not write about Chiquita in the future. Appellee alleges that Gannett and Chiquita entered into a secret agreement to remove him from his position of editor-in-chief.

Following the settlement, an internal investigation and report that placed responsibility on appellee for the Chiquita controversy was completed by in-house counsel and Nixon Peabody. Appellee alleges he was "scapegoated" in an effort to protect senior Gannett executives, as well as the drafters of the report, from criminal prosecution. At the same time as settlement negotiations occurred, a criminal investigation commenced in Ohio. Gallagher pleaded guilty to two felony offenses. Henry J. DePippo (DePippo), a Nixon Peabody attorney from the New York office, was lead counsel in the representation of Gannett in the criminal investigation. Nixon Peabody also acted as appellee's attorney, providing legal counsel during the criminal investigation until appellee was named a target of the grand jury investigation. Ultimately, no charges were brought against appellee. In November 1998, appellee was transferred to Gannett headquarters in Virginia. He was promised a new executive position at headquarters, and later an editor's position with one of seventy other newspapers when one became available. In January 2000, Gannett placed appellee on administrative leave and fired him in April 2000.

On April 13, 2000, appellee filed this action against appellants and Chiquita. The complaint alleges fraud, conspiracy to injure reputation and profession in violation of a Virginia conspiracy statute, tortious interference with prospective economic advantage, breaches of fiduciary duties and contracts, and attorney malpractice. In Count IX, appellee seeks a declaratory judgment against all of the parties who signed the settlement agreement, which would invalidate the clause in the settlement agreement prohibiting appellee from writing about Chiquita. During the course of pre-trial proceedings, appellants unsuccessfully sought dismissal of the action on the grounds of forum non conveniens. They presently appeal the decision which was adverse to them.

II. Legal Standards

This court permits interlocutory appeals from orders denying a motion to dismiss for forum non conveniens. See Smith v. Alder Branch Realty Ltd., 684 A.2d 1284 (D.C. 1996) (citing Frost v. Peoples Drug Store, 327 A.2d 810, 812-13 (D.C. 1974)). The review of a motion to dismiss on the grounds of forum non conveniens is two fold. Initially, this court independently evaluates the pertinent factors. "[T]his `independent evaluation' is not to be confused with de novo review. Rather, `we apply close scrutiny to the specific factors identified and evaluated by the trial court.'" Eric T. v. National Med. Enters., 700 A.2d 749, 754 (D.C. 1997) (citing Smith, supra, 684 A.2d at 1287). The specific forum non conveniens analysis articulated by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) has been adopted by this court. See Blake v. Professional Travel Corp., supra, 768 A.2d at 568, 572; Coulibaly v. Malaquias, 728 A.2d 595, 600 (D.C. 1999). Gulf Oil identifies private interest of the litigants and public interest of the forum as factors which should be considered in forum non conveniens cases. See Gulf Oil Corp., supra, 330 U.S. at 508. In Future View, Inc. v. Criticom, Inc., 755 A.2d 431, 433 (D.C. 2000) (citing Kaiser Found. Health Plan v. Rose, 583 A.2d 156, 158 (D.C. 1990)), these factors are summarized:

[T]he pertinent private interest factors include (1) plaintiff's choice of forum; (2) the convenience of parties and witnesses; (3) the ease of access to sources of proof; (4) the availability and cost of compulsory process; and (5) the enforceability of any judgment obtained. The public factors include: (1) the clearance of foreign controversies from congested dockets; (2) the adjudication of disputes in the forum most closely kinked thereto; and (3) the avoidance of saddling courts with the burden of construing a foreign jurisdiction's law.

Once this court is satisfied that the trial court took the proper factors into consideration, reversal of trial court rulings on forum non conveniens motions is only appropriate when there is a showing that the trial court abused its broad discretion. See Jenkins v. Smith, 535 A.2d 1367, 1369 (D.C. 1987) (en banc). "`Where the [trial] court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.'" Eric T., supra, 700 A.2d at 754 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S. Ct. 252 (1981)).

This court pays particular attention to the trial court's articulated reasons for reaching a decision on forum non conveniens. See Smith, supra, 684 A.2d at 1287. Notwithstanding that deference is given to the trial court in deciding a motion to dismiss on the grounds of forum non conveniens, such deference is not unlimited, as exhibited by relevant case law. Dunkwu v. Neville, 575 A.2d 293 (D.C. 1990) involved a claim by a Virginia resident against a doctor who practiced in Virginia and the District of Columbia. She alleged negligence in the obstetrical care and delivery of an infant daughter. In reversing the denial of a motion to dismiss on the grounds of forum non conveniens, this court stated that "[a]t no time [was] the plaintiff seen, examined or treated in the District of Columbia." Id. at 294. We stated that "the unusual step of reversing a discretionary decision" is necessary to prevent the promulgation of a rule that permits a motion "to be defeated by a showing of very little more than the plaintiff chose the courts of the District of Columbia as her forum." Id. at 294. Wyeth Labs., Inc. v. Jefferson, 725 A.2d 487 (D.C. 1999), involved a product liability claim filed by four Maryland residents. We found the trial court erred in denying the motion to dismiss on the grounds of forum non conveniens, as none of the events that gave rise to the claims occurred in the District, and the trial court did not articulate its reasons for denying appellant's motion. Id. at 491-92 n. 9. We said: "when neither party resides in the District and the plaintiff's claim has arisen in another jurisdiction, the burden shifts to the plaintiff to justify bringing suit in the District rather than in the forum more significantly connected to the case." Id. at 491. See also, Eric T., supra, 700 A.2d at 754 ("where it is shown that neither party resides in the District and the plaintiff's claim has arisen in another jurisdiction which has more substantial contacts with the cause of action, the burden normally allocated to the defendant to demonstrate why dismissal is warranted for forum non conveniens rests instead upon the plaintiff to show why it is not" (citation omitted)); see also Kaiser Found. Health Plan v. Rose, 583 A.2d 156, 156-57 (D.C. 1990) (dismissal conditioned on waiver of statute of limitations defense as the sole ...

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