Snofrost AB v. Hakansson

Filing 25

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 8 Motion to Dismiss subject to the defendant executing and filing in this court, on or before January 5, 2019 a stipulation to the jurisdiction of the Swedish courts for this dispute. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

SNÖFROST AB, AS THE WHOLLY
OWNED SUBSIDIARY OF HOCH
PARTNERS PRIVATE EQUITY
INVESTORS,
Plaintiff,
v.
SUSANNE HÅKANSSON
Defendant.

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CIVIL ACTION NO.
18-10798-DPW

MEMORANDUM AND ORDER
December 19, 2018
All the relevant dimensions of this case, except the
residence of the defendant, are grounded outside Massachusetts,
indeed outside the United States.

Yet, the plaintiff, Snöfrost

AB, a Swedish company, filed the complaint in this action in
this court to enforce an alleged agreement negotiated in Sweden
to buy shares in a Swedish company.
In a curious inversion of the reflexive effort by most
parties to obtain some perceived, if illusory, “home court”
advantage, the defendant, Susanne Håkansson (the only party with
Massachusetts contacts) has moved to dismiss the complaint on
grounds of forum non conveniens.

Ms. Håkansson argues that

Snöfrost’s claim should be addressed not by this court in
Massachusetts, but by the Malmö District Court in the Kingdom of
Sweden.

For its part, the Swedish party, Snöfrost, opposes
1

change of venue to Sweden, and says it wants to litigate in
Massachusetts, despite its contention that the parties agreed to
a Swedish forum for arbitration.
Prescinding from the parties’ anomalous positions
regarding preferred forum, I will grant Ms. Håkansson’s motion
to dismiss on grounds of forum non conveniens, leaving pursuit
of this dispute to Swedish legal process.
I. BACKGROUND1
The genesis of this case is the death of Ms. Håkansson’s
father, Bo Håkansson, a prominent Swedish businessman.

At the

time of his death, Mr. Håkansson owned, among other business
holdings, all the shares of Farstorps Gard AB (“FGAB”).
After her father’s passing, Ms. Håkansson, a United States
citizen, followed advice from various professional advisors and
pursued a strategy to minimize the tax burden associated with
the sale of the FGAB shares.

This strategy involved several

steps: first, the liquidation of the real estate assets of FGAB;

1

For purposes of resolving this motion to dismiss, I act on
the basis that “[a]ll well-pleaded allegations in the complaint
bearing on the venue question generally are taken as true,
unless contradicted by the defendant's affidavits.” Turnley v.
Banc of Am. Inv. Servs., Inc., 576 F. Supp. 2d 204, 211 (D.
Mass. 2008) (quoting 5B Charles Alan Wright & Arthur R. Miller,
Fed. Prac. and Proc. § 1352 (3d ed. 2004)); see also Am. Modern
Home Ins. Co. v. United Yacht Sales, No. CV 4:16-40127-TSH, 2017
WL 5760914, at *2 (D. Mass. Sept. 7, 2017) (“[W]hen ruling on a
motion to dismiss for improper venue a court must treat all
well-pleaded facts in the complaint as true and draw all
reasonable inferences in favor of the plaintiff.”)
2

second, assignment by Mr. Håkansson’s other heirs of inherited
FGAB shares to Ms. Håkansson resulting in her becoming the sole
shareholder; and third, sale of the FGAB shares by Ms. Håkansson
as an American resident, taking advantage of the step-up basis
approach under the United States tax regime.
After acquiring all of the FGAB shares on or about December
20, 2017, Ms. Håkansson and her representatives — in particular
her chief advisor Mr. Thomas Sträng, a Swedish tax consultant —
sought potential buyers for the shares.
One potential buyer was Jean-Daniel Cohen, described in the
complaint as “an overseas financial investor,” represented by a
Dutch tax consultant, Harry Rietveld.

Beginning in January

2018, Ms. Håkansson’s representatives entered into exclusive
negotiations with Mr. Cohen.
After preliminary discussions, the parties held an inperson meeting on January 15, 2018, in Malmö, Sweden.

On behalf

of Ms. Håkansson, Mr. Sträng and Par Toms (another Swedish tax
consultant) attended the meeting.

On the other side of the

negotiation table were Mr. Cohen and Mr. Rietveld.

At this

meeting, Mr. Sträng circulated a written share purchase
agreement (“SPA”), drafted by Ms. Håkansson’s retained counsel.
Notably, the SPA contained both a choice of law clause stating
that the agreement “shall be governed by and construed in
accordance with the laws of Sweden without regard to its
3

principles of conflict of law” and an arbitration clause
stating:
Any dispute, controversy or claim arising out of or in
connection with this Agreement, or the breach,
termination or invalidity thereof, shall be finally
settled by arbitration administered by the Arbitration
Institute of the Stockholm Chamber of Commerce (the
“SCC”). The Rules for Expedited Arbitrations shall
apply, unless the SCC in its discretion determines,
taking into account the complexity of the case, the
amount in dispute and other circumstances, that the
Arbitration Rules shall apply. In the latter case, the
SCC shall also decide whether the Arbitral Tribunal
shall be composed of one or three arbitrators.
At the January 15, 2018 meeting, the parties discussed
various terms, including: the purchase price; balance sheet
guarantees; a target closing date; and that a special purpose
company would be formed by Mr. Cohen within the Hoch Partners
Privates Private Equity Investors group to purchase the shares.
That special purpose company became the plaintiff in this
matter, Snöfrost.

Ms. Håkansson’s counsel, Johan Jacobsson, was

given the task of refining the SPA to reflect the agreements
reached at the meeting.
Following the January 15, 2018 meeting, Snöfrost readied
itself for closing; in doing so, it paid particular attention to
ensuring that the financial terms of the sale would not violate
Swedish banking laws.

The parties anticipated a closing date of

February 16, 2018.

4

A few days prior to February 16, 2018, the parties
communicated, and Mr. Sträng, on behalf of Ms. Håkansson,
expressed concerns that a review of the transaction was still
being conducted by Ms. Håkansson’s banking institution.
Snöfrost forwarded confirmation of funding from its financial
institution and caused loan documents to be sent to Ms.
Håkansson.

Snöfrost’s loan was funded on February 14, 2018.

On February 14, Mr. Sträng called Mr. Toms and told him
that Ms. Håkansson had chosen not to complete the sale.

Later

that day, Ms. Håkansson’s counsel communicated the same message
to Snöfrost’s counsel.
In a subsequent letter, Ms. Håkansson raised financing
issues, alleging that these issues would not allow Ms. Håkansson
to proceed with the sale on February 16, 2018.

Asserting

uncertainties regarding the legality of the financing of the
transaction under Swedish banking law and the uncertainty of the
outcome of the Bank’s review, the letter formally communicated
Ms. Håkansson’s decision to withdraw.
II. ANALYSIS
The doctrine of forum non conveniens permits a court with
jurisdiction (and where venue is proper) to decline to hear the
case and decide the action should be addressed in another forum,
based on the convenience of the parties and the court, and the

5

interests of justice.

See generally Piper Aircraft Co. v.

Reyno, 454 U.S. 235 (1981).
While Congress has enacted a statute, 28 U.S.C. § 1404(a),
permitting federal courts to transfer venue between themselves
for “the convenience of the parties and the witness,” there is
no such statutory mechanism for federal courts to transfer cases
to foreign courts.

Instead, the doctrine of forum non

conveniens is used to bring “about an international transfer of
a case . . . where plaintiffs may bring approximately the same
action in the foreign forum, but without the unfairness and
inconvenience that trying the case in this country would
entail.” Howe v. Goldcorp Investments, Ltd., 946 F.2d 944, 948
(1st Cir. 1991).
A court’s forum non conveniens analysis begins with a
presumption against the invocation of the doctrine.

This is

because “there is a strong presumption in favor of a plaintiff's
forum choice.”
(1st Cir. 1996).

Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 719
However, a foreign plaintiff’s choice of forum

“deserves less deference.”

Piper Aircraft Co., 454 U.S. at 255-

56 (“[A] plaintiff's choice of forum is entitled to greater
deference when the plaintiff has chosen the home forum. When the
home forum has been chosen, it is reasonable to assume that this
choice is convenient. When the plaintiff is foreign, however,
this assumption is much less reasonable.”) (internal citations
6

omitted).

Because Snöfrost is a foreign entity, I start with

the presumption that its choice of forum is afforded diminished
deference.
To litigate this case in Sweden, Ms. Håkansson must clear
two hurdles.

First, she must prove that there exists an

available and adequate alternative forum.
454 U.S. at 255 n.22 (1981).

Piper Aircraft Co.,

Second, she “must show that the

compendium of factors relevant to the private and public
interests implicated by the case strongly favors dismissal.”
Iragorri v. Int'l Elevator, Inc., 203 F.3d 8, 12 (1st Cir.
2000).
I address those two inquiries in turn.
A.

Available and Adequate Alternative Forum
To dismiss an action on the basis of forum non conveniens,

I must be satisfied there is another forum that is both
available and adequate.

Availability and adequacy are separate

inquiries. Mercier v. Sheraton Int'l, Inc., 981 F.2d 1345, 1350
(1st Cir. 1992); Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1330
(11th Cir. 2011).
1.

Availability

A foreign forum is deemed available “if the defendant
demonstrates that the alternative forum addresses the types of
claims that the plaintiff has brought and that the defendant is
amenable to service of process there.”
7

Iragorri, 203 F.3d at 12

(citing Piper Aircraft Co., 454 U.S. at 254 n. 22).

As a

result, “an alternative forum generally is deemed available if
the case and all of the parties come within that court’s
jurisdiction.” 14D Charles A. Wright & Arthur R. Miller, Fed.
Prac. & Proc. § 3828.3 (4th ed.)
The identified alternative foreign court must have personal
jurisdiction over the defendant.

For the purposes of ruling on

a motion to dismiss for forum non conveniens, this may be
satisfied if the defendant stipulates to submit to the foreign
court’s jurisdiction.

See, e.g., Lockman Found. v. Evangelical

All. Mission, 930 F.2d 764, 768 (9th Cir. 1991); Mercier, 981
F.2d at 1350; GE Capital Leasing Corp. v. Parametric Tech.
Corp., No. CIV.A. 07-11416-DPW, 2010 WL 3927787, at *6 (D. Mass.
Sept. 30, 2010).
Here, Ms. Håkansson is willing to stipulate to jurisdiction
of Swedish courts.

She has submitted evidence, in the form of a

legal opinion from a Swedish law firm, LA PARTNERS, signed by
one its partners Magnus Bernro (the “LA PARTNERS Opinion”),
which states that, under Swedish law, such consent would be
effective.

(“If the Defendant provides a voluntary submission

stating that it accepts the jurisdiction of the Malmö District
Court, that court would be obliged to respect such voluntary
submission and, having received the Plaintiff’s application for
summons, to have jurisdiction over the case.”)
8

Snöfrost has

presented no evidence that undermines this legal opinion.

I am

satisfied, subject to Ms. Håkansson’s formal stipulation to
submit to personal jurisdiction, that she is amenable to Swedish
service of process.
In addition to personal jurisdiction, the foreign court
must “permit litigation of the subject matter of the dispute.”
Piper Aircraft Co., 454 U.S. at 255.

If the court does not have

subject matter jurisdiction over the dispute, the foreign court
cannot be said to be available.
As to subject matter jurisdiction, Ms. Håkansson has
produced two legal opinions stating that Swedish courts have
subject matter jurisdiction over this dispute.

One is written

by Vinge, a Swedish law firm, and signed by one of its partners,
Erik Sjoman (the “Vinge opinion”).

The second legal opinion is

the LA PARTNERS opinion, mentioned supra.

These opinions offer

two legal bases why the Malmö District Court would have subject
matter jurisdiction over the current action.2

2

On October 16, 2018, I issued a procedural order requesting
additional briefing on the question “whether this Court or the
SPAs designated arbitral body (Stockholm Chambers of Commerce)
should decide the threshold question of the existence vel non of
a contract between the parties.” The parties’ submissions did
not address the question as it pertains to Swedish law. Thus,
albeit without briefing by the parties on the issue, I will
assume in the apparent absence of a dispute raised by Snöfrost
that as under the Federal Arbitration Act, whether a contract
containing an arbitration clause exists under Swedish law is
generally a question for a court, not an arbitrator. See,
e.g., Large v. Conseco Finance Servicing Corp., 292 F.3d 49, 53
9

First, a Swedish court would have jurisdiction pursuant to
Ch. 10, § 4 of the Swedish Code of Judicial Procedure (“the
Code”), which provides “[a] person with no known residence
within the Realm who has entered into an obligation . . . in the
Realm may be sued in a dispute concerning the same at the place
where the obligation was created . . . .”

Anticipating an

argument from the Snöfrost that Ms. Håkansson cannot rely on
this section of the Code because she denies the existence of any
contract, both legal opinions state that, under Swedish law,
under the “assertion doctrine,” courts have jurisdiction based
on a “plaintiff’s allegation that a contract is entered into
provided that the allegation is not clearly unfounded.”

While

the opinions concede there is no case law directly on point

(1st Cir. 2002); Specht v. Netscape Commc'ns Corp., 306 F.3d 17,
26 (2d Cir. 2002) (“It is well settled that a court may not
compel arbitration until it has resolved “the question of the
very existence” of the contract embodying the arbitration
clause.”); Sphere Drake Ins. Ltd. v. All Am. Ins. Co., 256 F.3d
587, 591 (7th Cir. 2001) (“[A] person who has not consented (or
authorized an agent to do so on his behalf) can't be packed off
to a private forum. Courts have jurisdiction to determine their
jurisdiction not only out of necessity (how else would
jurisdictional disputes be resolved?) but also because their
authority depends on statutes rather than the parties'
permission. Arbitrators lack a comparable authority to determine
their own authority because there is a non-circular alternative
(the judiciary) and because the parties do control the existence
and limits of an arbitrator's power. No contract, no power.”);
but see Primerica Life Ins. Co. v. Brown, 304 F.3d 469, 472 (5th
Cir. 2002) (plaintiff’s defense of lack of mental capacity to
enter into contract containing arbitration clause was a question
for the arbitrator, not the court).
10

applying the assertion doctrine to Ch. 10, § 4 of the Code,
based on the reasoning of analogous cases and academic
commentary, the opinions state that the assertion doctrine would
apply.3

As a result, Snöfrost’s assertion as to a contract would

ordinarily be enough to establish jurisdiction pursuant to Ch.
10, § 4 of the Code.
Although the opinions do not offer direct legal authority,
they are firm — albeit not absolutely certain — in their
contentions that subject matter jurisdiction exists.

Some

courts have suggested that, as evidence of jurisdiction, a
defendant must “put forth unequivocal, substantiated evidence
presented by affidavit testimony.”

Raytheon Engineers &

Constructors, Inc. v. H L H & Assocs. Inc., 142 F.3d 1279 n.11
(5th Cir. 1998).

This standard, with its proliferation of

adjectives of questionable authority4 and usefulness for weighing

3

Since Sweden is a civil law jurisdiction, the lack of
authoritative case law is not particularly unusual or
surprising. See V. Suarez & Co. v. Dow Brands, Inc., 337 F.3d
1, 8 (1st Cir. 2003) (“Puerto Rico is a civil law jurisdiction
and follows the rule of such jurisdictions of heavier reliance
on learned commentators than common law jurisdictions.”; Laubie
v. Sonesta Int'l Hotel Corp., 752 F.2d 165, 167 (5th Cir. 1985)
(“In . . . a civil law jurisdiction, the legislative will, as
expressed in the articles of the Code, is supreme. Case law,
although valuable, is of secondary importance.); Matos-Rivera v.
Flav-O-Rich, 876 F. Supp. 373, 377 (D.P.R. 1995) (“The essential
difference [between civil-law and common-law methodology] may
merely relate to the degree of sanctity with which precedents
are regarded.”) (citation omitted).
4
The standard of “unequivocal, substantiated evidence” appears
to have originated from a footnote in the case Baris v. Sulpicio
11

evidence, is, of course, not satisfied where unsubstantiated,
cursory, or wholly speculative claims concerning jurisdiction
are made.

Id. (expressing doubts whether an unsworn declaration

of a Panamanian attorney “who stated, with no substantiation or
citation of Panamanian legal authority, that the Panamanian
court would take jurisdiction of the case” was sufficient); see
also Varnelo v. Eastwind Transp., Ltd., No.
02CIV.2084(KMW)(AJP), 2003 WL 230741, at *16 (S.D.N.Y. Feb. 3,
2003), adhered to sub nom. Varnelo ex rel. Estate of Varnelo v.
Eastwind Transp., Ltd., No. 02 CIV.2084 KMW AJP, 2004 WL 103428
(S.D.N.Y. Jan. 23, 2004) (“The Court cannot determine foreign
law based on garbled snippets of translated statutes or
summaries of Russian court decisions.”).
Rather than burden inquiry with linguistic formulations
about “unequivocal” and “substantiated evidence,” the better
approach, I believe, is to require a court to be relatively
secure in the knowledge that the action it dismisses can be
assumed by the alternative forum, and not languish in some
jurisdictional limbo.

Here, I am satisfied Ms. Håkansson has

Lines, Inc., 932 F.2d 1540, 1550 (5th Cir. 1991). However,
there is no analysis or discussion as to why such an absolutist
standard was chosen by the Fifth Circuit. This standard does
not appear to have been adopted by the First Circuit. Indeed,
courts do not often deal in absolutes particularly in this
context, and are limited in their ability to do so when the
exercise involves predicting how a foreign court is likely to
resolve a question of foreign law.
12

met her burden that Swedish courts would likely have subject
matter jurisdiction based on Ch. 10, § 4 of the Code.

Snöwfrost

has presented nothing sufficiently contradicting or otherwise
suggesting that this conclusion is erroneous.
Ms. Håkansson presents evidence of an additional,
reinforcing legal basis to recognize subject matter jurisdiction
in the Malmö District Court as outlined in LA Partners opinion.
Pursuant to Ch. 10, § 18 of the Code, “as long as the Defendant
does not object to the jurisdiction of the court, the Malmö
District Court would be deemed to have jurisdiction over the
case . . . and have no ground to dismiss the case.”

Pursuant to

the Code, even if a court
is not competent to entertain proceedings for dispute
instituted in that court, the dispute shall
nonetheless be deemed to have been instituted in a
competent court, unless the defendant has made a
timely objection to the competence of the court or has
failed to appear in court at the first hearing or, if
the preparation is in writing, omitted to submit an
answer.
Ch. 10, § 18 (Emphasis added) (English translation provided by
Ms. Håkansson).
Thus, so long as the defendant does not object to
jurisdiction, the courts in Sweden will have subject matter
jurisdiction.

Ms. Håkansson has represented that she is

prepared to provide a written stipulation to this effect and I

13

will require such stipulation be filed in this court as a
condition to allowance of her motion to dismiss.
In summary, I am satisfied that Ms. Håkansson has made the
requisite showing that the Swedish courts are available to hear
Snöfrost’s action.
2.

Adequacy

Even if the foreign court is available to hear the dispute,
a case still may not be dismissed on forum non conveniens
grounds “if the remedy provided by the alternative forum is so
clearly inadequate or unsatisfactory that it is no remedy at all
. . . .”

Piper Aircraft Co., 454 U.S. at 254,; Mercier v.

Sheraton Int'l, Inc., 935 F.2d 419, 424 (1st Cir. 1991)
(“[F]inding that there is a satisfactory alternative forum
requires that . . . the parties will not ‘be deprived of all
remedies or treated unfairly, even though they may not enjoy the
same benefits as they might receive in an American court.’”)
(quoting In re Air Crash Disaster Near New Orleans, 821 F.2d
1147, 1165 (5th Cir. 1987)).
There is nothing in the record suggesting that the Swedish
courts cannot provide an adequate remedy either in addressing
the enforceability of the alleged contract and any reference to
arbitration, or that the parties will be treated unfairly.
result, I find the Swedish courts are adequate to hear
Snöfrost’s action.
14

As a

B.

Public and Private Factors
Having concluded the Swedish courts are an available and

adequate alternative forum, I turn to the second inquiry:
whether Ms. Håkansson has shown “that the compendium of factors
relevant to the private and public interests implicated by the
case strongly favors dismissal [in service of the forum non
conveniens doctrine].”

Iragorri, 203 F.3d at 12.

The Supreme Court identified various factors for
consideration in Gulf Oil Corp. v. Gilbert. 330 U.S. 501, 508
(1947) (Jackson, J.).

Private factors include: relative ease of

access to sources of proof; availability of compulsory process
for attendance of unwilling witnesses; the cost of obtaining
attendance of willing witnesses; and “all other practical
problems that make trial of a case easy, expeditious and
inexpensive.” Id. at 508.

The public interest factors include:

“the administrative difficulties resulting from court congestion
in the plaintiff's chosen forum; the ‘local interest in having
localized controversies decided at home’; the interest in having
the trial of a case conducted in a forum that is at home with
the governing law; the avoidance of unnecessary problems in
conflict of laws, or in the application of foreign law; and the
unfairness of imposing jury duty on citizens in an unrelated
forum.”

Mercier, 981 F.2d at 1354 (quoting Piper Aircraft, 454

U.S. at 241 n.6).
15

1.

Location of Witnesses

Almost all of the material witnesses were in Sweden when
the central event at issue — the January 15, 2018 meeting — took
place, including Mr. Strang, Mr. Toms, Mr. Jean-Daniel Cohen,
and Mr. Rietveld.

This is not a mere matter of numbers, but

rather focuses on the materiality of the witness testimony.

See

Boston Telecommunications Grp., Inc. v. Wood, 588 F.3d 1201,
1209 (9th Cir. 2009) (instead of assessing the number of
witnesses “in each locale” the court “should evaluate the
materiality and importance of the anticipated . . . witness’
testimony and then determine their accessibility and convenience
to the forum”) (quoting Lueck v. Sundstrand Corp., 236 F.3d
1137, 1146 (9th Cir. 2001)).

Snöfrost itself alleges that it

was at this meeting, where “the parties stood up, shook hands,
and acknowledged that all of the essential elements of the sale
transaction had been discussed and agreed upon . . . .”

These

witnesses, and others with potentially relevant testimony,
continue to be located in Sweden or elsewhere in Europe.
Moreover, Snöfrost is a Swedish entity.

While Ms. Håkansson is

located in the United States, she is prepared to submit to the
jurisdiction of Swedish Courts.

As a result, Sweden would be a

significantly more convenient forum than Massachusetts for the
witnesses in the case.

16

2.

Availability of Compulsory Process for Unwilling
Witnesses

Both parties spend considerable energy discussing the
respective abilities of this court and Swedish courts to compel
attendance of unwilling witnesses to testify.

However, neither

party suggests any of the potential witnesses are unwilling, or
potentially unwilling, to testify.

The onus is on the opposing

party to show that unwilling witnesses exist.

Duha v. Agrium,

Inc., 448 F.3d 867, 877 (6th Cir. 2006) (citing Manela v.
Garantia Banking, 940 F. Supp. 584, 592–93 (S.D.N.Y.1996));
Mercier, 935 F.2d at 428 (approving of a district court's
analysis holding defendant had failed to establish that these
witnesses would be unwilling to come to the United states to
testify on a voluntary basis).

Snöfrost does not rely on this

factor.
3.

Location of Events Underlying Action

The most “relevant actions, statements and omissions that
underlie the plaintiff’s” claims occurred in Sweden.
F.2d at 951.

Howe, 946

This is evidenced by the fact that the key meeting

occurred in Sweden; in its complaint, Snöfrost highlights that
this was the meeting where the key discussions “to finalize the
negotiations of the intended transaction” occurred and at this
meeting “all of the essential elements of the sale transaction
had been discussed and agreed upon . . . .”

17

This case, as

alleged, involves key negotiations in Sweden, between Swedish
representatives for Ms. Håkansson and representatives of
Snöfrost, a Swedish entity.

As to the facts, Sweden is, without

a doubt, where the center of gravity lies.
4.

Applicable Law

Whether or not the contractual choice of law provision is
enforceable, this case would be governed by Swedish law.

This

court would apply Swedish law pursuant to the choice-of-law
rules of Massachusetts.

Audi AG v. Peter J. McNulty Law Firm,

Irwin & Boesen, P.C., Berger & Montague (In re Volkswagen & Audi
Warranty Extension Litig.), 692 F.3d 4, 14, 17 (1st Cir. 2012)
(A federal court sitting in diversity applies the law that would
be applied under the choice0of-law rules of the forum state). In
Massachusetts, the courts apply a “functional approach to choice
of law” which is “explicitly guided by the Restatement (Second)
of Conflict of Laws (1971).” Levin v. Dalva Bros., Inc., 459
F.3d 68, 74 (1st Cir. 2006) (citations omitted).
Pursuant to the Second Restatement, “the rights and duties
of the parties with respect to an issue in contract are
determined by the local law of the state which, with respect to
that issue, has the most significant relationship to the
transaction and the parties . . . .” RESTATEMENT (SECOND)
OF

LAWS § 188 (1971).

OF

CONFLICT

In determining which state has the “most

significant relationship,” courts look to factors including the
18

place of negotiation of the contract, the place of performance
and the location of the subject matter of the contract.

Id.

Importantly, the Restatement says “[i]f the place of negotiating
the contract and the place of performance are in the same state,
the local law of this state will usually be applied . . . .”
Id. § 188(3).
Here, Sweden plainly has the “most significant
relationship” with the alleged contract.
negotiations happened in Sweden.5

First, the contract

Second, as to performance,

according to the SPA the shares were to be transferred in
Sweden.

Third, the subject matter of the alleged contract was

in Sweden, given that the company whose shares were to be sold
is incorporated under Swedish law.

Thus, quite apart from the

alleged choice of law agreement of the parties, Massachusetts
would apply Swedish law.

There is reason to believe a Swedish

court would not do the same.
To be sure, I am not required to make a definitive
determination regarding the choice of Swedish law as applicable
in order to resolve this factor.

5

Likelihood is sufficient.

See

Snöfrost initially argues that “the Defendant has not
established that the contract was entered into in Malmo” because
other material terms were negotiated by “email and phone across
various countries.” [Dkt. No. 14 at 9]. Contradicting itself
and undermining its own argument, Snöfrost then explicitly
concedes that what was the “substantially final version of the
SPA,” was agreed to in Malmö, Sweden, and contains “all material
deal terms.” (emphasis added). [Id. at 13].
19

generally Corporacion Tim, S.A. v. Schumacher, 418 F. Supp. 2d
529, 533 (S.D.N.Y. 2006), aff'd sub nom. Corp. Tim, S.A. v.
Schumacher, 223 F. App'x 37 (2d Cir. 2007) (“[T]he Court need
not ultimately decide the conflict of laws issue for purposes of
this decision, the likely application under New York's choice of
law rules of foreign law to this case weighs against retention
of the claim.”); Ioannides v. Marika Mar. Corp., 928 F. Supp.
374, 379 (S.D.N.Y. 1996) (“While the Court need not definitively
resolve the choice of law issue at this point, the likelihood
that foreign law will apply weighs against retention of the
action.”)
The likelihood – indeed near certainty - that Swedish law
will govern is reinforced by the fact the SPA that Snöfrost
seeks to enforce has a choice-of-law clause stating that Swedish
law governs.

Yet, Snöfrost self-contradictorily claims, see

also supra note 5, for purposes of opposing forum non conveniens
dismissal that Massachusetts state contract law applies.

This

bizarre argument undercuts the express terms of the purported
contract Snöfrost seeks to enforce.
frivolous, unfounded and immaterial.

I find the argument
Whether there is an

enforceable choice-of-law agreement, Swedish law is likely to
apply.
The fact Swedish law likely applies is, of course,
relevant, but not “dispositive,” to this court’s analysis of the
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appropriate forum.

Mercier, 981 F.2d at 1357; see also In re

Banco Santander Sec.-Optimal Litig., 732 F. Supp. 2d 1305, 1339
(S.D. Fla. 2010), aff'd sub nom. Inversiones Mar Octava Limitada
v. Banco Santander S.A., 439 F. App'x 840 (11th Cir. 2011)
(indicating the cost and inconvenience factor of proving foreign
law weighs in favor of forum non conveniens dismissal));
Scottish Air Int'l, Inc. v. British Caledonian Grp., PLC, 81
F.3d 1224, 1234 (2d Cir. 1996).

Of course, “the task of

deciding foreign law [is] a chore federal courts must often
perform.”

Id. (citation omitted).

Nonetheless, to prove

Swedish law, affidavits and the associated translations of
Swedish authorities would likely be marshalled by both parties.
Combined with that cost and inefficiency, the practical reality
is that a Swedish court would, by definition, be more competent
to decide and apply the applicable Swedish law.

As Judge

Friendly once observed:
[T]ry as we may to apply the foreign law as it comes to
us through the lips of the experts, there is an
inevitable hazard that, in those areas, perhaps
interstitial but far from inconsequential, where we have
no clear guides, our labors, moulded by our own habits
of mind as they necessarily must be, may produce a result
whose conformity with that of the foreign court may be
greater in theory than it is in fact.
Conte v. Flota Mercante Del Estado, 277 F.2d 664, 667 (2d
Cir. 1960) (citation omitted).

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This factor weighs in favor of dismissal on forum non
conveniens grounds.
5.

The Respective Interests of Sweden and the United
States in the Action

There is a “local interest in having localized
controversies decided at home.”

Mercier, 981 F.2d at 1354.

As

discussed supra, it is evident that the center of gravity for
this dispute is in Sweden.

As compared to the United States,

Sweden has a far greater interest in deciding a matter brought
by a Swedish plaintiff concerning the ownership of a Swedish
company based on an alleged contract negotiated primarily in
Sweden.

See Howe, 946 F.2d at 953 (a case dealing with the

actions of a Canadian corporation and its agents were matters of
“principal[] . . . concern to Canada and Canadians.”)
Snöfrost strains to suggest the United States has a
significant interest in hearing the case because Ms. Håkansson
was selling the shares as a part of an overall scheme to use
United States tax laws to minimize her father’s estate’s tax
liabilities.

That connection between the purported contract and

one party’s motives for entering into such a contract, does not
alter the fact that this is essentially a Swedish contract
dispute.

The defendant’s motives for pursuing the contract are

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not directly relevant to whether the contract was formed by the
parties and, if so, on what terms.
6.

Conclusion on Public and Private Factors

The private and public factors overwhelmingly point to
Sweden as being the most convenient and appropriate forum for
Snöfrost’s action.
III. CONCLUSION
Ms. Håkansson has made a compelling showing to overcome the
background — but diminished — presumption in favor of Snöfrost’s
anomalous choice of forum.

As a result, subject to Ms.

Håkansson executing and filing, on or before January 5, 2019 in
this court a stipulation — containing the terms set forth below
— to the jurisdiction of the Swedish courts, Ms. Håkansson’s
motion to dismiss [Dkt. No. 8] is granted.
It is hereby ORDERED that the stipulation to be executed
and filed by Ms. Håkansson shall provide in words and substance:
That the defendant stipulates the Malmö District Court in
the Kingdom of Sweden has personal jurisdiction over the
parties; that it is a proper venue for this case and competent
to address this dispute; and, further, that the defendant will
be bound by that court’s determination regarding the

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enforceability, vel non, of the alleged agreement in dispute in
this matter.

/s/ Douglas P. Woodlock_____
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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