FORUM NON CONVENIENS: AFGHAN FAMILY BUSINESS DISPUTE BELONGS IN AFGHANISTAN AND PAKISTAN

Rasul v. Rasul
Dallas Court of Appeals, No. 05-17-00612-CV (December 17, 2018)
Justices Stoddart, Whitehill, and Boatright (Opinion, linked here)

Neil R. Burger

Abdul Rahman Rasul founded a business in Afghanistan owning and managing more than thirty properties. Later, he moved to Pakistan and started a successful tire-import business. After his death, two of his sons sued their brothers in Texas concerning the businesses. Based on the extensive evidentiary record, including expert testimony on the laws and procedures of the courts in Afghanistan and Pakistan, the district court dismissed the suit based on forum non conveniens, finding there were available, adequate, and convenient legal forums in the foreign countries. The Dallas Court of Appeals, reviewing for abuse of discretion, affirmed.

The night before the father’s death in Pakistan, most of the sons orally agreed about how the two businesses would be owned and operated. Eventually all of the brothers obtained U.S. citizenship, and some of them moved to Texas. Nearly ten years after the father’s death, a dispute concerning the proceeds from the businesses arose among the family members, and a lawsuit was filed in Collin County. The defendant-brothers moved to dismiss based on forum non conveniens.

The Court of Appeals reviewed the district court’s findings on the three-step analysis under Texas’s common law doctrine of forum non conveniens: (1) is there an available alternative forum; (2) is there an adequate alternative forum; and (3) does balancing private and public factors concerning the lawsuit favor dismissal.

Available Alternative Forum: The defendant-brothers stipulated in their motion to dismiss, their reply brief, and at the hearing on the motion that they would accept informal service and consent to jurisdiction in both Afghanistan and Pakistan. This stipulation was sufficient to support the trial court’s finding of an available alternative forum.

Adequate Alternative Forum: To be adequate, the alternative forum must not deprive the plaintiff of all remedies or treat the plaintiff unfairly. Although the plaintiff-brothers raised issues concerning potential substantial delay in the proceedings, potential blasphemy charges concerning their invocation of Texas law concerning their father’s will, and that Afghanistan was an “active combat zone,” the defendants’ expert witness disputed these concerns. Defendants stipulated to the appointment of a special Commissioner in Pakistan to alleviate any concerns over potential delay, all parties were Afghan citizens, and one plaintiff had successfully invoked the Afghan legal system to revoke powers of attorney relating to the family’s business. Ultimately, the district court concluded, and the appellate court agreed, that the record demonstrated both countries’ legal forums provided damages for breach of contract and in tort, and it was not appropriate to do a “comparative analysis” of the countries’ substantive and procedural legal systems. Therefore, Afghanistan and Pakistan were adequate forums for the dispute.

Private and Public Interests: The Court of Appeals afforded substantial deference to the district court’s findings on the balance of relevant private and public interests among the forums. Significant sources of proof, including the property and records of the companies in Afghanistan and Pakistan and all non-family witnesses, were located in the alternative forums. In addition, the administrative burden of litigating in Texas was significant. Testimony and documents would need to be translated. The court would also be required to interpret and apply foreign law. These factors, and the evidentiary record, supported litigating this family business dispute elsewhere, not in Texas.

Dismissal affirmed.