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Page 3A CONNECTICUT LAW JOURNAL June 4, 2024
2 JUNE, 2024 225 Conn. App. 725
DeCicco v. Dynata, LLC
JOSEPH DECICCO, ADMINISTRATOR (ESTATE OF
NANCY LOYD OLAIVAR ABAD), ET AL. v.
DYNATA, LLC, ET AL.
(AC 45862)
Alvord, Elgo and Seeley, Js.
Syllabus
The plaintiffs commenced this action against the defendants, D Co. and
certain officers of D Co., to recover damages for the wrongful death of
twenty-nine adults who died as a result of a four-story building fire in
Davao City, Philippines. The fire occurred at a call center where the
decedents worked as employees of S Co. The officers of D Co. were
also directors and shareholders of S Co. On or before the date of the
incident, D Co., whose principal place of business was in Shelton, had
secured contracts in the United States to perform work and to provide
reports and data to its United States based clients on the basis of that
work. D Co. outsourced certain of the work to S Co., specifically, to
provide telephone, survey, polling, and data collection services from
call centers in the Philippines. The defendants filed a motion to dismiss
the plaintiffs’ complaint on the ground of forum non conveniens, arguing
that the Philippines was an adequate alternative forum to litigate the
matter because the defendants were amenable to service of process,
had stipulated to accept service of process and had agreed to litigate
the dispute in the Philippines. The trial court granted the defendants’
motion to dismiss, finding that the Philippines was an adequate alternative forum, and the plaintiffs appealed to this court. Held:
1. The plaintiffs could not prevail on their claim that the trial court applied
the wrong test, namely, ‘‘that consent may be used as a substitute for
jurisdiction,’’ to determine whether the Philippines was an adequate
alternative forum: the plaintiffs misinterpreted the court’s decision, as
a proper interpretation of the court’s memorandum of decision was that
the court used the test enunciated in Schertenleib v. Traum (589 F.2d
1156) to support its determination that the Philippines was a suitable
forum notwithstanding competing expert testimony regarding whether
the action was barred in the Philippines by the statute of limitations;
moreover, the court correctly relied on Picketts v. International Playtex,
Inc. (215 Conn. 490) to determine that the Philippines was an adequate
alternative forum because the defendants were amenable to service of
process in the Philippines and the Philippines was a suitable forum
considering the competing expert testimony regarding whether the
action was barred in the Philippines by the statute of limitations; furthermore, the court left open the possibility that the case could be restored to
the docket if a Philippine court dismissed the case for lack of jurisdiction.
June 4, 2024 CONNECTICUT LAW JOURNAL Page 4A
225 Conn. App. 725 JUNE, 2024 3
DeCicco v. Dynata, LLC
2. The plaintiffs could not prevail on their claim that the trial court improperly
dismissed the case on the ground of forum non conveniens: the court
did not abuse its discretion in applying Picketts in finding that, because
the defendants agreed to accept service and litigate in the Philippines,
they were amenable to service there; moreover, the court necessarily
recognized the bipolarity of the parties’ competing expert affidavits
regarding whether the statute of limitations barred the plaintiffs from
bringing the action in the Philippines in determining that the Philippines
was an adequate alternative forum; furthermore, it was evident that the
court had a justifiable belief that the plaintiffs could bring the action
in the Philippines, such that the court’s decision to grant the motion
to dismiss on a conditional basis did not constitute an abuse of its
discretion.
Argued March 5—officially released June 4, 2024
Procedural History
Action to recover damages for the wrongful death of
the plaintiffs’ decedents as a result of the defendants’
alleged negligence, and for other relief, brought to the
Superior Court in the judicial district of Waterbury, and
transferred to the Complex Litigation Docket, where
the court, Bellis, J., granted the defendants’ motion to
dismiss and rendered judgment thereon, from which
the plaintiffs appealed to this court. Affirmed.
Michael S. Taylor, with whom were Brendon P. Levesque, and, on the brief, Eric P. Anderson, Corinne A.
Burlingham, Welsen T. Chu, pro hac vice, and Thomas
P. Routh, pro hac vice, for the appellants (plaintiffs).
Scott Stirling, pro hac vice, with whom, on the brief,
were James E. Nealon, and Edward P. Gibbons, pro
hac vice, for the appellees (defendants).
Opinion
ALVORD, J. The plaintiffs, Attorney Joseph DeCicco,
administrator of the estates of twenty-nine Philippine
citizens,1 Jehmar Bongcayao, Mostes B. Castillo, Sylvester B. Celades, Guidhavio C. Garzon, Jexter D. Generales, and Cecilline Sismar, appeal from the judgment of
1
The twenty-nine deceased individuals, who are named as parties via
their estates, are Nancy Loyd Olaivar Abad, Ian Kiem Porras Adlawan,
Christine Cajes Alviola, Rodderick Cutay Antipuesto, Shiela Mae Anod Baca-
Page 5A CONNECTICUT LAW JOURNAL June 4, 2024
4 JUNE, 2024 225 Conn. App. 725
DeCicco v. Dynata, LLC
the trial court granting the motion of the defendants,
Dynata, LLC (Dynata), Christopher Mark Fanning, and
David Ian Weatherseed, to dismiss the plaintiffs’ complaint on the ground of forum non conveniens. On
appeal, the plaintiffs claim that the court (1) applied
the wrong test to determine whether the Philippines
was an adequate alternative forum, and (2) improperly
dismissed this case on the ground of forum non conveniens. We disagree and, accordingly, affirm the judgment
of the court.
The following facts, as alleged in the plaintiffs’ operative complaint, dated August 28, 2020, and procedural
history are relevant to the resolution of this appeal. The
plaintiffs commenced this action to recover damages
for the wrongful death of twenty-nine adults who died
on December 23, 2017, from carbon monoxide poisoning and asphyxiation followed by severe postmortem
burns and charring, as a result of a four-story building
fire in Davao City, Philippines. The fire occurred at a
call center where the twenty-nine decedents worked as
employees of SSI Philippines, Inc. (SSI Philippines).2 On
or before December 23, 2017, Dynata, a limited liability
company with its principal place of business in Shelton,
Connecticut, had secured contracts in the United States
to perform work and to provide reports and data to its
United States based clients on the basis of that work.
Dynata outsourced the contract work to SSI Philippines
ling, Randy Balando Balcao, Kurtchin Angela Yumo Bangoy, Jonas Oroyan
Basalan, Mary Louielyn Maningo Bongcayao, Alexander May Moreno Castillo, Apple Jane Abes Celades, Antioco Esguerra Celestial, Jr., Roderick
Cabugsa Constantinopla, Mikko Salazar Demafeliz, Christen Joy Ibañez Garzon, Regine Alcano Generales, Jimbo Lupos Limosnero, Charlyn Relacion
Liwaya, Johanie Undagan Matondo, Rosyl Chavez Montañez, Rhenzi Nova
Duco Muyco, Janine Joy Culipapa Obo, Joyne Ramayla Pabelonia, Analiza
Mosquera Peñarijo, Jim Benedict Sazon Quimsing, Ivan Nebelle Limosnero
Roble, Jeffrey Cabantingan Sismar, Ellen Joy Dawa Yorsua, and Desiree
Gayle Aperocho Zacarias. The remaining plaintiffs are the surviving spouses
of the decedents.
2
SSI Philippines, Inc., is not a party in this action.
June 4, 2024 CONNECTICUT LAW JOURNAL Page 6A
225 Conn. App. 725 JUNE, 2024 5
DeCicco v. Dynata, LLC
to provide telephone, survey, polling, and data collection services from call centers in the Philippines. In
December, 2017, Fanning was the president and chief
executive officer of Dynata and a director and shareholder of SSI Philippines, and Weatherseed was the
controller of Dynata and a director and shareholder of
SSI Philippines.
In December, 2019, the plaintiffs commenced this
action against the defendants. The operative complaint
alleges ten counts of wrongful death and loss of consortium claims under theories of direct negligence and
vicarious liability due to agency and joint venture relationships.
On March 20, 2020, the defendants filed a motion to
dismiss the plaintiffs’ complaint on the ground of forum
non conveniens, an accompanying memorandum of law
in support of their motion, and an appended exhibit. The
defendants also submitted the affidavit of Francisco
Edralin Lim, a law professor and attorney admitted to
the Philippine bar, with additional exhibits. In their
memorandum of law, the defendants argued, inter alia,
that the Philippines is an adequate alternative forum
because the defendants (1) are amenable to service of
process in the Philippines, (2) have stipulated to accept
service of process in the Philippines, and (3) have
agreed to litigate this dispute in the Philippines. Lim
averred that under Philippine law ‘‘several fora exist’’
in the Philippines for the plaintiffs to bring this action.
On March 28, 2022, the plaintiffs filed a memorandum
of law in opposition to the defendants’ motion to dismiss with appended exhibits. Further, the plaintiffs submitted the affidavit of Elizabeth Aguiling Pangalangan,
a law professor and attorney admitted to the Philippine
bar. The plaintiffs argued, and Pangalangan averred,
inter alia, that the Philippines is not an adequate alternative forum because this action would be barred by the
Page 7A CONNECTICUT LAW JOURNAL June 4, 2024
6 JUNE, 2024 225 Conn. App. 725
DeCicco v. Dynata, LLC
statute of limitations, and, thus, a Philippine court sua
sponte would dismiss the plaintiffs’ action.
Thereafter, the defendants filed a reply memorandum
in further support of their motion to dismiss and submitted a supplemental affidavit from Lim. The defendants
maintained that ‘‘the statute of limitations in the Philippines has not expired, and neither the defendants nor
the court sua sponte could raise the statute of limitations as a defense.’’ The defendants challenged Pangalangan’s averments that a court sua sponte would dismiss the case as barred by the statute of limitations
and relied on Lim’s averment that a Philippine court
would recognize the defendants’ affirmative waiver of
the statute of limitations and hear the plaintiffs’ action.
The plaintiffs filed a motion to strike Lim’s supplemental affidavit, arguing, inter alia, that it contained
incorrect recitations of Philippine law. The defendants
filed a memorandum in opposition to the plaintiffs’
motion to strike, and the plaintiffs filed a reply. A hearing on the defendants’ motion to dismiss and the plaintiffs’ motion to strike was held before the court, Bellis,
J., on July 20, 2022. The court denied the plaintiffs’
motion to strike on September 12, 2022, stating in relevant part: ‘‘[T]he primary argument advanced by the
plaintiffs in their motion to strike is that the defendants’
expert is incorrect in his analysis of Philippine law. As
this court is not nearly as well equipped as a Philippine
court to resolve issues of Philippine law, and the court
is already dismissing the case on forum non conveniens
. . . the court will allow the affidavit to remain in the
record for the purposes of a potential appeal. Therefore,
the motion to strike is denied.’’3
That same day, the court issued a memorandum of
decision on the defendants’ motion to dismiss. The
3
There are no claims on appeal regarding the court’s ruling on the motion
to strike.
June 4, 2024 CONNECTICUT LAW JOURNAL Page 8A
225 Conn. App. 725 JUNE, 2024 7
DeCicco v. Dynata, LLC
court applied our Supreme Court’s decision in Durkin
v. Intevac, Inc., 258 Conn. 454,
782 A.2d 103 (2001),
which sets forth the following four step process for
consideration by the court of a forum non conveniens
motion to dismiss: (1) ‘‘whether an adequate alternative
forum exists that possesses jurisdiction over the whole
case’’; (2) ‘‘all relevant private interest factors with a
strong presumption in favor of—or, in the present case,
a weakened presumption against disturbing—the plaintiffs’ initial choice of forum’’; (3) ‘‘if the balance of
private interest factors is equal, the court should consider whether any public interest factors tip the balance
in favor of trying the case in the foreign forum’’; and
(4) ‘‘if the public interest factors tip the balance in favor
of trying the case in the foreign forum, the court must
. . . ensure that [the] plaintiffs can reinstate their
[action] in the alternative forum without undue inconvenience or prejudice.’’ (Internal quotation marks omitted.) Id., 466.
In determining that the Philippines was an adequate
alternative forum, the court stated in relevant part: ‘‘In
the present matter, the defendants have agreed to
accept service and litigate in the Philippines. Nevertheless, the parties’ experts disagree on whether the defendants are subject to jurisdiction in the Philippines. In
his affidavit . . . Lim . . . contended that an action
of this nature can be brought in the Philippines. Lim
cited to Article 35 of the Philippines Code, which recognizes civil liability arising from a criminal act and Article
2176, which allows civil liability arising from fault or
negligence under the concept of quasi-delicts. Further,
Lim testified that the December 17, 2018 investigation
resolution stated that the vicarious liability of the corporations among others ‘can be better threshed out in a
separate civil suit between the parties.’
‘‘Nevertheless, the plaintiffs produced an affidavit
from . . . Pangalangan . . . which asserts that the
Page 9A CONNECTICUT LAW JOURNAL June 4, 2024
8 JUNE, 2024 225 Conn. App. 725
DeCicco v. Dynata, LLC
Philippine court would have a duty to dismiss this action
if it were filed in the Philippines because it is barred
by the statute of limitations, even if the defendants
represent that they will waive any applicable statute of
limitations in the Philippines. Pangalangan also testified
that the Philippine court will dismiss this case pursuant
to its doctrine of forum non conveniens because Dynata
is an American corporation with its principal place of
business in Connecticut.
‘‘In Lim’s reply affidavit, he stated that the statute of
limitations has not expired because it was paused when
this case was filed in Connecticut and will only begin
running again if Connecticut dismisses the case. Additionally, he stated that under Philippine law, a party
can waive a defense and voluntarily expose itself to a
lawsuit. Further, the defendants have agreed to litigate
in the Philippines, therefore, they would not invoke the
doctrine of forum non conveniens to then dismiss the
case in the Philippines.
‘‘In Schertenleib v. Traum, 589 F.2d 1156 (2d Cir.
1978), the Second Circuit Court of Appeals was faced
with a similar issue where the district court, in deciding
whether dismissal was warranted on forum non conveniens grounds, received conflicting expert opinions
regarding whether the foreign court had jurisdiction
over the matter. The Second Circuit ultimately dismissed the case on the condition that the defendants
would consent to jurisdiction in the foreign court and
if the case was dismissed from the foreign court, the
plaintiffs could move to restore the action in the American court. Id., 1166. The court stated that, ‘[w]hen the
alternative forum is foreign, particularly where . . . it
is a civil law country, our courts have difficulty discerning whether a non-resident defendant really would be
subject to jurisdiction in the foreign country without
his consent. Indeed, the court may receive conflicting
expert opinions on this issue. If the defendant consents
June 4, 2024 CONNECTICUT LAW JOURNAL Page 10A
225 Conn. App. 725 JUNE, 2024 9
DeCicco v. Dynata, LLC
to suit in the foreign alternate forum, and if that appears
to be sufficient under the foreign law, why waste the
litigants’ money and the court’s time in what is essentially an unnecessary and difficult inquiry into the further intricacies of foreign jurisdictional law?’ Id., 1163.
Similarly, here, the defendants have agreed to submit to
jurisdiction in the Philippines. While there is conflicting
evidence as to whether that is sufficient for the Philippine court to take jurisdiction, the court finds that the
Philippine court is an adequate alternative forum.
Accordingly, the court may dismiss this case on forum
non conveniens grounds because it finds that the Philippines is an adequate alternative forum, the defendants
have agreed to jurisdiction there, and, in the event that
the Philippine court dismisses the case for lack of jurisdiction, the plaintiffs can move to restore the action
in this court.’’ The court, after applying the remaining
Durkin factors, granted the defendants’ motion to dismiss. This appeal followed.
Before turning to the claims on appeal, we first recognize ‘‘the four step process for examining forum non
conveniens claims outlined in Gulf Oil Corp. v. Gilbert,
330 U.S. [501, 508–509, 67 S. Ct. 839,
91 L. Ed. 1055
(1947)], and clearly set forth in Pain v. United Technologies Corp., 637 F.2d 775, 784–85 (D.C. Cir. 1980), cert.
denied, 454 U.S. 1128,
102 S. Ct. 980,
71 L. Ed. 2d 116
(1981), which [our Supreme Court has] stated is a useful
frame of reference for the law of Connecticut. . . .
First, the court should determine whether an adequate
alternative forum exists that possesses jurisdiction over
the whole case. . . . Second, the court should consider
all relevant private interest factors with a strong presumption in favor of—or, in the present case, a weakened presumption against disturbing—the plaintiffs’ initial choice of forum. . . . Third, if the balance of
private interest factors is equal, the court should consider whether any public interest factors tip the balance
Page 11A CONNECTICUT LAW JOURNAL June 4, 2024
10 JUNE, 2024 225 Conn. App. 725
DeCicco v. Dynata, LLC
in favor of trying the case in the foreign forum. . . .
Finally, if the public interest factors tip the balance in
favor of trying the case in the foreign forum, the court
must . . . ensure that [the] plaintiffs can reinstate their
[action] in the alternative forum without undue inconvenience or prejudice.’’ (Citations omitted; internal quotation marks omitted.) Durkin v. Intevac, Inc., supra, 258
Conn. 466.
I
The plaintiffs first claim on appeal that ‘‘the trial
court applied the wrong test to determine whether the
Philippines was an adequate alternative forum.’’ Specifically, the plaintiffs argue that the court adopted a rule
‘‘that consent may be used as a substitute for jurisdiction,’’ and that such a rule ‘‘has never been adopted,
so far as the plaintiffs can ascertain, by any court in
Connecticut (or by a court applying Connecticut law).’’
We disagree with the plaintiffs that the court applied
the wrong test and instead conclude that the plaintiffs’
claim fails because it rests on a misinterpretation of
the trial court’s decision.
We begin our analysis with the applicable standard
of review. Resolution of this claim ‘‘requires us to interpret the court’s memorandum of decision. The construction of a judgment is a question of law for the
court, such that our review of the [plaintiffs’] claim
is plenary.’’ (Internal quotation marks omitted.) In re
Jacquelyn W., 169 Conn. App. 233, 241,
150 A.3d 692
(2016). ‘‘As a general rule, judgments are to be construed in the same fashion as other written instruments.
. . . The determinative factor is the intention of the
court as gathered from all parts of the judgment. . . .
The interpretation of a judgment may involve the circumstances surrounding the making of the judgment.
. . . Effect must be given to that which is clearly
implied as well as to that which is expressed. . . . The
June 4, 2024 CONNECTICUT LAW JOURNAL Page 12A
225 Conn. App. 725 JUNE, 2024 11
DeCicco v. Dynata, LLC
judgment should admit of a consistent construction as
a whole.’’ (Internal quotation marks omitted.) Windham
v. Doctor’s Associates, Inc., 161 Conn. App. 348, 356,
127 A.3d 1082 (2015).
In the present case, the plaintiffs argue that the court
misapplied the relevant legal standard and ‘‘applied the
wrong test to determine whether the Philippines was
an adequate alternative forum.’’ The plaintiffs maintain
that the court improperly relied on Schertenleib v.
Traum, supra,589 F.2d 1156, as support for what the
plaintiffs contend constituted a determination that the
defendants’ consent to jurisdiction in the Philippines
is sufficient to satisfy the adequate alternative forum
requirement. In response, the defendants contend that
the plaintiffs’ argument ‘‘misunderstands both the trial
court’s analysis and the proper analysis of an adequate
alternative forum.’’ We agree with the defendants.
We are not persuaded that the court’s reliance on
Schertenlieb as support for its determination that the
Philippines is a suitable forum improperly created a
rule that ‘‘consent may be used as a substitute for jurisdiction . . . .’’ The court’s memorandum of decision
makes clear that Piper Aircraft Co. v. Reyno, 454 U.S.
235, 254 n.22,
102 S. Ct. 252,
70 L. Ed. 2d 419 (1981),
and Picketts v. International Playtex, Inc., 215 Conn.
490, 504 n.13,
576 A.2d 518 (1990), guided its determination that the Philippines is an adequate alternative
forum and quoted language from Picketts on the doctrine of forum non conveniens. ‘‘Ordinarily, the alternative forum prerequisite will be satisfied simply if the
defendants are amenable to service in another jurisdiction. Piper Aircraft Co. v. Reyno, supra, [254 n.22]; Gulf
Oil [Corp.] v. Gilbert, supra, [330 U.S. 506–507]. The
United States Supreme Court, however, has identified
at least some instances in which mechanical inquiry
into the amenability of process in the other forum must
Page 13A CONNECTICUT LAW JOURNAL June 4, 2024
12 JUNE, 2024 225 Conn. App. 725
DeCicco v. Dynata, LLC
surrender to a more meaningful assessment of the suitability of the alternative forum. In Piper Aircraft Co.
v. Reyno, supra, [254 n.22] the United States Supreme
Court noted that, in rare circumstances, where the remedy offered by the other forum is clearly unsatisfactory,
such as where the alternative forum does not permit
any litigation of the subject matter of the legal controversy, the other forum may not meet the threshold
requirement of an adequate alternative.’’ (Emphasis in
original.) Picketts v. International Playtex, Inc., supra,
504 n.13.
With respect to the standard inquiry, the court found
that, ‘‘[i]n the present matter, the defendants have
agreed to accept service and litigate in the Philippines.’’
The court then proceeded to perform ‘‘a more meaningful assessment of the suitability of the alternative
forum.’’ (Emphasis omitted.) Picketts v. International
Playtex, Inc., supra, 215 Conn. 504 n.13. The court considered the Lim and Pangalangan affidavits, which provided conflicting testimony as to whether a Philippine
court would dismiss this case as barred by the statute
of limitations. The court relied on Schertenleib, which
it described as another case in which ‘‘the district court,
in deciding whether dismissal was warranted on forum
non conveniens grounds, received conflicting expert
opinions regarding whether the foreign court had jurisdiction over the matter.’’ The court in the present case
reasoned: ‘‘The Second Circuit ultimately dismissed the
case on the condition that the defendants would consent to jurisdiction in the foreign court and if the case
was dismissed from the foreign court, the plaintiffs
could move to restore the action in the American court.
[Schertenleib v. Traum, supra,589 F.2d 1166]. The court
stated that, ‘[w]hen the alternative forum is foreign,
particularly where . . . it is a civil law country, our
courts have difficulty discerning whether a non-resident
defendant really would be subject to jurisdiction in the
June 4, 2024 CONNECTICUT LAW JOURNAL Page 14A
225 Conn. App. 725 JUNE, 2024 13
DeCicco v. Dynata, LLC
foreign country without his consent. Indeed, the court
may receive conflicting expert opinions on this issue.
If the defendant consents to suit in the foreign alternate
forum, and if that appears to be sufficient under the
foreign law, why waste the litigants’ money and the
court’s time in what is essentially an unnecessary and
difficult inquiry into the further intricacies of foreign
jurisdictional law?’ Id., 1163. Similarly, here, the defendants have agreed to submit to jurisdiction in the Philippines. While there is conflicting evidence as to whether
that is sufficient for the Philippine court to take jurisdiction, the court finds that the Philippine court is an
adequate alternative forum.’’
Accordingly, the court’s reliance on Schertenleib does
not, as the plaintiffs contend, create a new test that
‘‘consent may be used as a substitute for jurisdiction
. . . .’’ Rather, a proper interpretation of the court’s
memorandum of decision is that the court used Schertenleib to support its determination that the Philippines
is a suitable forum notwithstanding the competing
expert testimony regarding whether this action is
barred in the Philippines by the statute of limitations.
The court correctly relied on Picketts v. International
Playtex, Inc., supra, 215 Conn. 504 n.13, to determine
that the Philippines is an adequate alternative forum
because (1) the defendants are amenable to service of
process in the Philippines and, (2) the Philippines is a
suitable forum considering the competing expert testimony regarding whether this action is barred in the
Philippines by the statute of limitations. Finally, the
court left open the possibility that the present case
could be restored to the docket if a Philippine court
dismisses the case for lack of jurisdiction. Thus, the
court in no way concluded that consent to suit can
overcome a lack of jurisdiction. We conclude, therefore,
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14 JUNE, 2024 225 Conn. App. 725
DeCicco v. Dynata, LLC
that the plaintiffs misinterpreted the court’s memorandum of decision. Accordingly, we reject the plaintiffs’
claim.4
II
The plaintiffs’ second claim on appeal is that the
court improperly dismissed the case on the ground of
forum non conveniens. The plaintiffs argue that, assuming it applied the correct legal test, the court nonetheless improperly found that the Philippines is an adequate alternative forum because ‘‘there is conflicting
evidence on whether the defendants could be sued at
all in the Philippines, and on the effect of the statute
of limitations.’’ We disagree.
‘‘We begin with the applicable standard of review
and the well established legal principles that guide our
analysis of the defendants’ claim. A ruling on a motion
to dismiss for forum non conveniens is reviewed under
an abuse of discretion standard. . . . As a common
law matter, the doctrine of forum non conveniens vests
4
The plaintiffs’ claims on appeal are limited to challenging the court’s
determination that the Philippines is an adequate alternative forum. Nevertheless, the plaintiffs make a passing statement in their principal appellate
brief that ‘‘[t]he balance of interests must favor the plaintiffs’ choice, as the
‘central principle of the forum non conveniens doctrine [is] that unless the
balance is strongly in favor of the defendant[s], the [plaintiffs’] choice of
forum should rarely be disturbed.’ Durkin [v. Intevac, Inc., supra, 258 Conn.
464].’’ (Emphasis omitted.) In the forum non conveniens analysis, the balancing of the private and public interests occurs only after a court has determined that an adequate alternative forum exists. See Schertenleib v.
Traum,
supra, 589 F.2d 1159–60 (proving adequate alternative forum is ‘‘a prerequisite for application of forum non conveniens’’); see also Durkin v. Intevac,
Inc., supra, 466 (second and third step of forum non conveniens analysis
is balancing private and public interest factors). In this appeal, the plaintiffs
do not claim that the court abused its discretion in analyzing the private
and public interest factors after making its determination that the Philippines
is an adequate alternative forum. Accordingly, we deem any claim related
to the court’s balancing of interests abandoned. See, e.g., Maurice v. Chester
Housing Associates Ltd. Partnership, 189 Conn. App. 754, 756 n.1,
208 A.3d
691 (2019) (claim merely raised in passing, deemed abandoned).
June 4, 2024 CONNECTICUT LAW JOURNAL Page 16A
225 Conn. App. 725 JUNE, 2024 15
DeCicco v. Dynata, LLC
discretion in the trial court to decide where trial will
best serve the convenience of the parties and the ends
of justice. . . . In our application of the abuse of discretion standard, we must accept the proposition that
simply to disagree with the [trial] court as if the facts
had been presented to this court in the first instance
cannot be the basis of our decision. . . . [T]he trial
court’s exercise of its discretion may be reversed only
upon a showing of clear abuse. [W]here 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. . . .
Meaningful review, even from this circumscribed perspective, nonetheless encompasses a determination
whether the trial court abused its discretion as to either
the facts or the law. . . .
‘‘Emphasis on the trial court’s discretion does not,
however, overshadow the central principle of the forum
non conveniens doctrine that unless the balance is
strongly in favor of the defendant[s], the [plaintiffs’]
choice of forum should rarely be disturbed. . . .
Although it would be inappropriate to invoke [a] rigid
rule to govern discretion . . . it bears emphasis that
invocation of the doctrine of forum non conveniens is
a drastic remedy . . . which the trial court must
approach with caution and restraint. The trial court
does not have unchecked discretion to dismiss cases
from [the plaintiffs’] chosen forum simply because
another forum, in the court’s view, may be superior to
that chosen by the plaintiff[s]. . . . Although a trial
court applying the doctrine of forum non conveniens
must walk a delicate line to avoid implicitly sanctioning
forum-shopping by either litigant at the expense of the
other . . . it cannot exercise its discretion in order to
level the playing field between the parties. The [plaintiffs’] choice of forum, which may well have been chosen precisely because it provides the plaintiff[s] with
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16 JUNE, 2024 225 Conn. App. 725
DeCicco v. Dynata, LLC
certain procedural or substantive advantages, should
be respected unless equity weighs strongly in favor of
the defendant[s]. . . .
‘‘[T]he overriding inquiry in a forum non conveniens
motion is not whether some other forum might be a
good one, or even a better one than the [plaintiffs’]
chosen forum. The question to be answered is whether
[the plaintiffs’] chosen forum is itself inappropriate or
unfair because of the various private and public interest
considerations involved. . . . Accordingly, the trial
court, in exercising its structured discretion, should
place its thumb firmly on the [plaintiffs’] side of the
scale, as a representation of the strong presumption in
favor of the [plaintiffs’] chosen forum, before
attempting to balance the private and public interest
factors relevant to a forum non conveniens motion.
‘‘When, as in the present action, the plaintiffs are foreign
to their chosen forum, the trial court must readjust the
downward pressure of its thumb, but not remove it
altogether from the plaintiffs’ side of the scale. Even
though the plaintiffs’ preference has a diminished
impact because the plaintiffs are themselves strangers
to their chosen forum . . . Connecticut continues to
have a responsibility to those foreign plaintiffs who
properly invoke the jurisdiction of this forum . . .
especially in the somewhat unusual [situation in which]
it is the forum resident who seeks dismissal. . . .
[Therefore] [w]hile the weight to be given to the choice
of a domestic forum by foreign plaintiffs is diminished,
their entitlement to a preference does not disappear
entirely. The defendants challenging the propriety of
this choice continue to bear the burden to demonstrate
why the presumption in favor of [the plaintiffs’] choice,
weakened though it may be, should be disturbed.’’ (Citations omitted; internal quotation marks omitted.) Durkin v. Intevac, Inc., supra, 258 Conn. 463–65.
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225 Conn. App. 725 JUNE, 2024 17
DeCicco v. Dynata, LLC
‘‘[A] defendant has the burden of establishing that an
adequate alternative forum exists and that the relevant
factors favor litigating in the alternative forum. . . . If
a defendant fails to carry this burden, the forum non
conveniens motion must be denied regardless of the
degree of deference accorded [the] plaintiff’s forum
choice. . . . An alternate forum is adequate if the
defendants are amenable to service of process there,
and if it permits litigation of the subject matter of the
dispute. . . . It is well established that an alternative
forum need not have identical causes of actions or
remedies—or, more generally, law as favorable to the
plaintiff’s chance of recovery as the chosen forum—to
be adequate. . . . However, a forum may be inadequate if the remedy it offers is so clearly inadequate or
unsatisfactory that it is no remedy at all . . . or if there
is a complete absence of due process or an inability
. . . to provide substantial justice to the parties in the
alternative forum . . . .’’ (Citations omitted; internal
quotation marks omitted.) Owens v. Turkiye Halk Bankasi A.S., United States Court of Appeals, Docket No.
21-610-cv (2d Cir. May 2, 2023), cert. denied, U.S.
, 144 S. Ct. 551,
217 L. Ed. 2d 293 (2024).
Our resolution of this claim on appeal requires us to
consider whether the court abused its discretion in
applying Picketts v. International Playtex, Inc., supra,
215 Conn. 504 n.13, to reach the conclusion that the
Philippines is an adequate alternative forum. The court
determined that (1) the defendants are amenable to
service of process in the Philippines, and (2) notwithstanding the disagreement of the parties’ experts as to
whether the Philippines has subject matter jurisdiction
over this action, the Philippines is a suitable forum to
litigate this case.
As to the first inquiry of Picketts, the plaintiffs contend that ‘‘there is conflicting evidence on whether the
defendants could be sued at all in the Philippines . . . .’’
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18 JUNE, 2024 225 Conn. App. 725
DeCicco v. Dynata, LLC
In the present case, the defendants stipulated, inter alia,
that ‘‘upon dismissal of this suit, they will: (1) consent
to jurisdiction in the Philippines; [and] (2) accept service of process in connection with an action in the
Philippines . . . .’’ Additionally, the defendants ‘‘consent[ed] to the reopening of the action in Connecticut
in the event the above conditions are not met as to
any proper defendant in this action.’’ The defendants’
stipulation in the present case mirrors that in Durkin
v. Intevac, Inc., supra, 258 Conn. 481 n.23, wherein the
defendants stipulated, inter alia, that they ‘‘agreed to:
(1) consent to jurisdiction in [the foreign jurisdiction];
(2) accept service of process in connection with an
action in [the foreign jurisdiction] . . . and (6) consent
to the reopening of the action in Connecticut in the
event the above conditions are not met as to any proper
defendant in this action.’’ (Internal quotation marks
omitted.)
A court does not abuse its discretion in finding that
a defendant’s representation that it will accept service
in the alternative forum is sufficient to show that the
defendant is amenable to service in that forum. See,
e.g., Wamai v. Industrial Bank of Korea, United States
Court of Appeals, Docket No. 21-1956-cv (2d Cir. March
8, 2023) (defendant’s ‘‘agreement to accept service in
Korea, to submit to the jurisdiction of the Korean courts,
and to waive any statute of limitations defenses that
may have arisen since the filing of these actions’’ was
sufficient to show amenable to service), cert. denied,
U.S. , 144 S. Ct. 552,
217 L. Ed. 2d 294 (2024);
Carney v. Beracha, 996 F. Supp. 2d 56, 72 (D. Conn.
2014) (defendants’ statement that they are amenable to
suit in Venezuela was sufficient). We, therefore, disagree with the plaintiffs’ contention that ‘‘it is not clear
that the defendants are amenable to service in the Philippines.’’ Rather, the court properly determined that
because ‘‘the defendants have agreed to accept service
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225 Conn. App. 725 JUNE, 2024 19
DeCicco v. Dynata, LLC
and litigate in the Philippines,’’ they are amenable to
service there.
As to the second inquiry of Picketts—whether the
Philippines is a suitable forum—the plaintiffs argue,
inter alia, that the court incorrectly concluded that a
Philippine court would have jurisdiction. In support of
this contention, the plaintiffs rely on Norex Petroleum
Ltd. v. Access Industries, Inc., 416 F.3d 146, 159 (2d
Cir. 2005), cert. denied, 547 U.S. 1175,
126 S. Ct. 2320,
164 L. Ed. 2d 860 (2006) (Norex), for the proposition that
‘‘such a finding [that a foreign jurisdiction is capable
of hearing the merits of a claim] is impossible where
an action that can be maintained in the United States
is foreclosed in the foreign jurisdiction . . . an adequate forum does not exist if a statute of limitations
bars the bringing of [a] case in a foreign forum that
would be timely in the United States.’’ (Emphasis omitted; internal quotation marks omitted.)
Norex, however, is factually distinguishable from the
present case because the court determined that the
‘‘defendants failed to carry their burden to demonstrate
that Russia affords [the] plaintiff a presently available
adequate alternative forum . . . .’’ Id., 160. In reaching
this conclusion, the court was provided with ‘‘[e]xpert
opinions from both sides reveal[ing] that Russian courts
would likely deem the core issues underlying [the] plaintiff’s claims largely precluded . . . .’’ Id., 159. In the
present case, the parties submitted to the court conflicting expert affidavits regarding whether the statute of
limitations bars the plaintiffs from bringing this action
in the Philippines. Specifically, Lim averred that a Philippine court would have jurisdiction over this action,
whereas Pangalangan averred that a court sua sponte
would dismiss this action as barred by the statute of
limitations. In determining that the Philippines is a suitable forum to litigate this case, the court necessarily
recognized the bipolarity of the expert opinions and
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20 JUNE, 2024 225 Conn. App. 725
DeCicco v. Dynata, LLC
stated that, notwithstanding the ‘‘conflicting evidence
as to whether [agreement to submit to jurisdiction] is
sufficient for the Philippine court to take jurisdiction,
the court finds that the Philippine court is an adequate
alternative forum.’’
The United States Court of Appeals for the Second
Circuit has observed that a trial court does not abuse
its discretion when it considers the parties’ competing
expert testimony to assist in determining whether an
alternative forum is suitable. See Wamai v. Industrial
Bank of Korea, supra, United States Court of Appeals,
Docket No. 21-1956-cv (court properly weighed testimony of competing experts and did not abuse its discretion in finding that defendant’s expert was more convincing). In the present case, the court did not abuse
its discretion in considering the opinions of Lim and
Pangalangan and determining that the Philippines is a
suitable forum. The court, therefore, properly found
that the Philippines is an adequate alternative forum.
Finally, the plaintiffs argue that ‘‘the trial court’s conditional dismissal cannot save its decision’’ to grant the
defendants’ motion to dismiss. This contention warrants little discussion. A ‘‘court may dismiss on forum
non conveniens grounds, despite its inability to make
a definitive finding as to the adequacy of the foreign
forum, if the court can protect the non-moving party
by making the dismissal conditional. This . . . does
not, however, excuse the . . . court from engaging in
a full analysis of those issues of foreign law or practice
that are relevant to its decision, or from closely examining all submissions related to the adequacy of the foreign forum. If, in the end, the court asserts its ‘justifiable
belief’ in the existence of an adequate alternative forum,
it should cite to evidence in the record that supports
that belief.’’ (Emphasis added; footnote omitted.) Bank
of Credit & Commerce International (Overseas) Ltd.
v. State Bank of Pakistan, 273 F.3d 241, 247–48 (2d Cir.
June 4, 2024 CONNECTICUT LAW JOURNAL Page 22A
225 Conn. App. 725 JUNE, 2024 21
DeCicco v. Dynata, LLC
2001). In the present case, it is evident that the court
had a justifiable belief that the plaintiffs could bring
this action in the Philippines. The court’s memorandum
of decision ‘‘closely examin[ed] all submissions related
to the adequacy of the foreign forum’’; id., 248; by setting
forth a thorough examination of the Lim and Pangalangan affidavits. We, therefore, conclude that the court’s
decision to grant the defendants’ motion to dismiss on
a conditional basis did not constitute an abuse of its
discretion.
Accordingly, we conclude that court did not abuse
its discretion in granting the defendants’ motion to dismiss on the ground of forum non conveniens.5
The judgment is affirmed.
In this opinion the other judges concurred.
5
The plaintiffs do not challenge on appeal the court’s findings as to the
remaining factors set forth in Durkin v. Intevac, Inc., supra, 258 Conn. 466.
