Ghannoum v. Qatar Airways Q.C.S.C.

Filing 25

MEMORANDUM AND ORDER Conditionally Granting 8 MOTION to Dismiss for Forum Non Conveniens and Brief in Support. (Signed by Judge Ewing Werlein, Jr) Parties notified.(gkelner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL GHANNOUM,

§
§
§
§
§
§
§
§
§
§
§

Plaintiff,

v.
QATAR AIRWAYS Q.C.S.C. d/b/a
QATAR AIRWAYS Q.C.S.C.
CORPORATION,
Defendant.

CIVIL ACTION NO. H-13-2994

MEMORANDUM AND ORDER
Pending

is

Airways Q. C. S. C.

Defendant

Airways

Q. C. S. C.

d/b/a Qatar

Corporation's Motion to Dismiss for Forum non

Conveniens (Document No.8).
motion,

Qatar

After having carefully considered the

supplemental brief, response,

reply,

oral arguments, and

applicable law, the Court concludes as follows.
I.
In April 2008,

Background

Plaintiff Michael Ghannoum

("Plaintiff"),

a

resident of Bexar County, Texas, was hired to work as a pilot for
Defendant

Qatar Airways

Corporation

Q.C.S.C.

("Defendant"),

d/b/a

pursuant

to

contract ("the Employment Contract").1

1
Document No.
No.9 at 2 ~ 7.

I,

ex.

B

~~

2,

Qatar Airways
a

written

Q.C.S.C.

employment

Defendant is entirely owned

7,

9

(Orig.

Pet.)i

Document

by the government of Qatar, and Plaintiff's employment was based in
Qatar, where he resided under a Qatari resident permit. 2
Plaintiff contends that on May 9, 2013, Defendant's CEO Akbar
Al

Baker

( "Al

Baker" )

"made

several

demeaning

and

false

allegations" to Plaintiff concerning Plaintiff's relationship with
a

flight

attendant

employed

by

Defendant,

and

displayed

to

Plaintiff pictures taken of Plaintiff while he was in a private
setting. 3

Al Baker placed Plaintiff on suspension, and allegedly

"threatened to 'black list' PLAINTIFF allover the Persian Gulf.,,4
On June 4, 2013, Al Baker terminated Plaintiff.5

Plaintiff alleges

that Al Baker did not tell Plaintiff why he was being terminated,
and that Plaintiff did not receive payment for his work in June
2013.

6

Plaintiff further alleges that upon his termination, Defendant
withheld
cancelled

from

Plaintiff

Plaintiff's

the

return

$40,000

for

resident

Qatari

of

permit,

and

24

days,

withheld

Plaintiff's passport for 22 days, which prevented him from leaving

2

Document NO.9 at 1-2

~~ 4,

3

Document No. I, ex. B

~

8.

7.

4 Id.
Plaintiff was removed from suspension on May 16, but
was suspended again on June 2.
Id., ex. B ~ 8.

5

Id., ex. B

6

~

Id.

8.

2

the

country. 7

As

a

result,

Plaintiff

was

unable

to

attend

scheduled interviews in other countries with Fly Dubai and Air
Arabia. 8 Plaintiff also alleges

that Defendant made

disparaging

Plaintiff

statements"

about

to

his

"false and
prospective

employers. 9
Plaintiff contends that on June 24,
him,

2013,

Defendant forced

"under duress due to the threat of exile" from the Persian

Gulf,

to sign documents releasing Defendant from any claims by

Plaintiff. 10
Qatar due

Plaintiff alleges that he was ultimately deported from
to

Defendant's

refusal

to

release

his

passport

and

resident permit, 11 and that he cannot return to the country for two
to four years due to certain provisions of Qatari law.
now

brings

suit

for

tortious

interference

with

Plaintiff
prospective

relations, intentional infliction of emotional distress, intrusion
on seclusion, public disclosure of private facts, defamation, and
business disparagement. 12

7

Id., ex. B

8

Id.

9

~

Defendant moves to dismiss on the basis

Id.
~

9.

10

Id., ex. B

10.

11

Id.

12

Document No. I, ex. B.
3

of forum non conveniens, contending that Qatar is a more convenient
forum for the resolution of Plaintiff's claims.13
During oral arguments on August 28, 2014, Defendant conceded
that Qatar would not be an adequate, available forum for Plaintiff
to pursue his claims if he could not reenter Qatar,

represented to

the Court that Defendant would do everything within its power to
facilitate Plaintiff's reentry into Qatar to allow him to file and
pursue his claims there, and stated that 120 days is a reasonable
period

of

time

to

wait

for

Qatar's

immigration

authority

to

determine if Plaintiff is allowed to reenter Qatar to file and
prosecute the claims he alleges in this case.
II.
A.

Discussion

Legal Standard

"The forum non conveniens determination is committed to the
sound discretion of the trial court."
102 S. Ct. 252, 266 (1981).

Piper Aircraft Co. v. Reyno,

When applying the doctrine, however,

a district court should use the controlling procedural framework
set out by the Fifth Circuit in In re Air Crash Disaster Near New
Orleans, La., 821 F.2d 1147 (5th Cir. 1987)

(en banc), vacated on

other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez, 109 S.

Ct. 1928 (1989), reinstated except as to damages by In re Air Crash

13 Document No.8.
4

Disaster Near New Orleans,
banc)

La.,

883 F.2d 17

(5th Cir.

1989)

(en

The procedural framework involves a three-step analysis

that requires:

(1)

determining if an al ternati ve forum exists;

(2) considering the "relevant factors of private interest, weighing
in

the

balance

the

relevant

deference

given

the

particular

plaintiff's initial choice of forum"; and (3) weighing the relevant
public interest,

if the private interests are either nearly in

balance or do not favor dismissal.

Id. at 1165-66.

This framework is modified if the parties' dispute is within
the scope of a valid forum selection clause.

Atl. Marine Const.

Co., Inc. v. U.S. Dist. Court for the W. Dist. of Tex., 134 S. Ct.
568, 581-82

(2013)

.14

Because a forum selection clause "may have

figured centrally in the parties' negotiations" and "may, in fact,
have been a

critical factor

together in the first place,"
forum selection clause
Id.

at

583.

If

a

in their agreement to do business
the court should enforce a valid

"[i] n all but the most unusual

cases."

valid forum selection clause applies,

Plaintiff's choice of forum merits no weight.

"the

Rather, as the party

defying the forum-selection clause, the plaintiff bears the burden"
of establishing that dismissal in favor of the foreign forum for

14 Atlantic Marine dealt with a
transfer to another federal
district court under 28 U.S.C. § 1404(a), but the Supreme Court
noted that "the same standards should apply to motions to dismiss
for forum non conveniens in cases involving valid forum-selection
clauses pointing to state or foreign forums." Atl. Marine, 134 S.
Ct. at 583 n.8.

5

which the parties bargained is unwarranted.
n.8.

See id. at 581, 583

Furthermore, the court is not to consider arguments about the

parties '

private interests,

forum- selection clause,

because

they waive

"[w] hen parties agree to a
the

right

to challenge

the

preselected forum as inconvenient or less convenient for themselves
or their witnesses, or for their pursuit of the litigation."

Id.

at 582.
Finally,
appropriate,
reinstate

the

it must

his

inconvenience
Moreover,

if

suit
or

district

court

nonetheless
in

the

decides

dismissal

is

that

plaintiff

can

"ensure

alternative

prejudice."

Air

Crash,

a

forum
821

without

undue

F.2d

1166.

at

the court must enable the plaintiff to return to the

American forum "if the defendant obstructs such reinstatement in
the alternative forum."
B.

Id.

Qatar as an Available, Adequate Forum
"An alternative forum exists when it is both available and

adequate."

Saqui v. Pride Cent. Am., LLC, 595 F.3d 206 (5th Cir.

2010)

(citing Air Crash, 821 F.2d at 1165)

when

"the

entire

case

and

jurisdiction of that forum."

A forum is available

all

parties

can

come

wi thin

the

Id.

Plaintiff argues that Qatar is

not an available forum because Plaintiff's claims are barred by the
statute of limitations. 15

15

However, Defendant has agreed to submit

Document No. 17 at 8.
6

itself to the jurisdiction of Qatar and to waive any statute of
limitations defenses. 16

See id.,

595 F.3d at 212

("Here, PCA has

agreed to submit to the jurisdiction of the Mexican court, thereby
making Mexico an available forum.") .
Plaintiff

further

argues

because, under Qatari law,

Qatar

is

not

an available

forum

Plaintiff is forbidden to reenter the

country for two to four years.

Plaintiff exhibits two articles of

Qatari law that he states prevent his reentry. 17

At oral argument,

Document No. 8 at 8 i Document No. 9 at 3 ~ 15 (Decl. of
Captain Suhail Ismaeel, Chief Operations Officer for Defendant) .
16

17 Document No.
17 at 8. Plaintiff exhibits two articles from
Law No. 4 of 2009 Regarding Regulation of the Expatriates Entry,
Departure, Residence and Sponsorship. Article 4 provides:

An entry visa may not be granted to an Expatriate who was
previously a resident in the State of Qatar for
employment purposes until two years have elapsed from the
date of departure.
The Minister or his authorized
representative may waive this period and the competent
authority may, subject to a written approval from the ex
sponsor, grant an exemption from the period so specified.
Id., ex. A at 1 of 2.

Article 14 states:

Should an employee
[have]
been terminated of the
employment pursuant to the provisions of Article 61 of
the Labor Law, the provisions of the laws governing the
State personnel, or of any other law, and the employee
decides not to appeal the decision before the court of
jurisdiction or if such appeal is unsuccessful, he may
not return to the country within four years from the date
of departure.
Id., ex. A at 2 of 2.
Plaintiff argues that he was deported from
Qatar, and is precluded from entering the country. Document No. 17
at 8.
Defendant's expert on Qatari law summarily states without
explanation that "Plaintiff was not deported at all." Document No.
21 at 6 of 10 ~ 4.
In any event, the text of the Qatari laws
7

Defendant conceded that Qatar would not be an available forum if
Plaintiff is unable fully to enter Qatar as needed to file and
prosecute to conclusion his lawsuit, and represented that Defendant
would do everything wi thin its power to facilitate

Plaintiff's

receiving whatever governmental permission is required for this
purpose.

Accordingly, the Court finds that Qatar is an available

forum provided that Plaintiff is permitted by that forum to enter
Qatar and freely to come and go as needed to prosecute his lawsuit
against Defendant.
Qatar is an adequate forum.

A forum is adequate when "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."
F.3d 377,379-80
1165).

Gonzalez v.

(5th Cir. 2002)

Chrysler Corp.,

(quoting Air Crash,

821 F.2d at

While less favorable standards or lower potential recovery

do not render an alternative forum inadequate,
"rare

301

circumstances"

where

the

remedy

offered

there may exist
by

a

forum

is

"clearly unsatisfactory," such as when "the alternative forum does
not permit litigation of the subject matter of the dispute."

Piper

Aircraft, 102 S. Ct. at 265 n.22i see also Gonzalez, 301 F.3d at
380.

Such rare circumstances have not been shown to be present

here.

Defendant's Qatari law expert, Michael Palmer, avers that

quoted by Plaintiff do not appear to condition Plaintiff's reentry
on whether or not he was deported.
8

Qatar has an independent court system that provides due process of
law, and the fact that Defendant is owned entirely by the Qatari
government

should

have

Plaintiff in Qatar. IS

no

influence

on

an

action

brought

by

Palmer further explains that while the Qatari

Civil Code generally does not recognize specific causes of action,
it

follows

the

general

principle

that

a

person is

liable

for

damages if he injures another, and thus, Plaintiff may be able to
recover on his claims in Qatar. 19
Qatar is an adequate forum.

Accordingly, the Court finds that

See Kinney v. Occidental oil & Gas

Corp., 109 F. App'x 135, 136 (9th Cir. 2004)

("We conclude that the

district court did not abuse its discretion when it determined that
an

adequate

forum

for

the

adjudication of

Kinney's

action

is

available in Qatar, where Occidental stipulated to the jurisdiction
of

the

Qatari

Labor

Court,

agreed

to

toll

the

statute

of

Document No.9 at 12 ~~ 8-9. Plaintiff objects that Palmer
is not a competent expert because he is not a citizen of Qatar or
a Gulf Cooperation Council (GCC) country, and Qatari law states
that he must be so in order to be entered onto the "Roll of
Practicing Lawyers." Document No. 17 at 13 i id., ex. C (Article 13
of Law (23) for year 2006 regarding Enacting the code of law
practice).
However, Palmer who is Of Counsel in the Doha, Qatar
office of the law firm Patton Boggs LLP, explains that Patton Boggs
LLP is licensed by the Qatari Minister of Justice, and that as an
employee of the firm, Palmer was permitted to be licensed in Qatar.
Document No. 21 at 5 of 10 to 6 of 10.
Defendant exhibits the
licenses for Patton Boggs LLP and for Palmer. Id. at 8 of 10 to 10
of 10. The Court finds Palmer is qualified to opine on Qatari law.
18

Document No. 9 at 12 ~~ 6 -7 ("If the Plaintiff presented
sufficient proof to establish that he was injured as a result of
Defendant's alleged actions, he may be able to recover actual
for
emotional
or psychological
damages,
including damages
injuries.") .
19

9

limitations applicable to Kinney's claims from the date on which
she filed her action in the district court, and presented evidence
that Kinney would have a remedy in a Qatari court.").
C.

Balance of Private and Public Interest
1.

Private Interest

If a plaintiff's claims come within the scope of a valid forum
selection clause,

the district court must consider the private

interest factors

to weigh entirely in favor of the preselected

forum.

Atl.

Marine,

134 S.

Ct.

scope of a forum selection clause,
language of the parties' contracts.

at

582.

In interpreting the

the court is to look to the
Marinechance Shipping, Ltd. v.

Sebastian, 143 F.3d 216, 222 (5th Cir. 1998).
The Employment Contract states that Plaintiff's "employment
shall be governed by the laws of the State of Qatar.

Any dispute

shall be referred to the Qatari Courts and shall be construed in
accordance with its laws."20

Plaintiff argues that his claims are

tort claims which occurred after Plaintiff was terminated, and are
not

related

to

the

Employment

Contract. 21

However,

the

Fifth

Circuit in a similar case rejected a contract/tort distinction in
determining the scope of a forum selection clause.

20 Id. at 6

~

13.

21 Document No. 17 at 2.
10

Id. at 221-22

(holding forum selection clause in seamen's employment contract
covering "any and all disputes or controversies arising out of or
by virtue of this Contract" included tort causes of action arising
in the course of the seamen's employment).

Because Plaintiff's

claims arise out of Defendant's alleged conduct related to the
termination of
Plaintiff's

Plaintiff's employment and are

alleged

conduct

during

his

intertwined with

employment,

and

the

Employment Contract covers any dispute related to his employment,
the

forum

selection clause applies.

Accordingly,

the private

interest factors are deemed to weigh in favor of the case being
adjudicated in Qatar. 22

22 Even if Plaintiff's claims were not within the scope of the
forum selection clause, the private interest factors nonetheless
weigh in favor of a Qatari forum. Factors relevant to the parties'
private interests are: (1) the relative ease of access to evidence;
(2) the availability of compulsory process for the attendance of
unwilling witnesses; (3) the cost of obtaining attendance of
willing witnesses; (4) the possibility of viewing any relevant
premises; and (5) all other practical factors that make trial
expeditious and inexpensive. Saqui, 595 F.3d at 213. All of the
proposed witnesses, other than Plaintiff, are located in Qatar or
the Middle East.
See Document No. 16 at 2-3; Document No. 17
at 10.
It will be less costly for these witnesses to attend
proceedings in Qatar, and Qatar has procedures for compelling the
attendance of any unwilling witnesses located within its borders.
Document No. 9 at 12 ~ 11.
Furthermore, Defendant's principal
office is in Qatar, and Plaintiff's employment file is located
there. Id. at 1-3 ~~ 4, 6. Accordingly, the Court finds that, if
applied, the private interest factors would weigh in favor of
Qatar.

11

2.

Public Interest

The

public

interest

factors

are:

(1)

difficulties arising from court congestion;

the

administrative

(2) the local interest

in having localized controversies decided at home; (3) the interest
in trying a diversity case in a forum that is at home with the
governing

lawi

(4)

the

avoidance

of

unnecessary

problems

in

conflict of laws, or in the application of foreign lawi and (5) the
unfairness of burdening citizens in an unrelated forum with jury
duty.

Saqui, 595 F.3d at 214.
Qatar has a more substantial interest in this controversy than

the Southern District of Texas.

Defendant

is organized under

Qatari law, has its principal place of business in Qatar, and is
owned by the Qatari government.

The relationship between Plaintiff

and Defendant arises under the Employment Contract, which contains
Qatari choice-of-law and choice-of-forum clauses.
the events at issue took place in Qatar.

Furthermore, all

While Texas may have an

interest in the hiring and firing of an American citizen by a
foreign

corporation,

Qatar's

interest

in resolving the present

controversy outweighs the interest of this district.

See

Forsythe

v. Saudi Arabian Airlines, Corp., 885 F.2d 285, 291 (5th Cir. 1989)
(finding Saudi Arabian interest outweighed that of united States
where

employment

contract

underlying

lawsuit

was

executed and

breached in Saudi Arabia, contained Saudi Arabian choice-of -law and
choice-of-forum provisions, and defendant was a corporation wholly
12

owned by the Saudi Arabian government)

("We acknowledge that our

community has an interest in the hiring and firing of American
citizens by foreign corporations; however, in this situation, Saudi
Arabia appears to have a greater interest in resolving this dispute
than does the United States. ").
The public interest factors

related to the application of

foreign law also weigh in favor of dismissal. 23

Federal courts

apply the forum state's conflicts-of-law rules to determine what
law governs.
1021
test,

(1941).
found

II

Klaxon Co. v. Stentor Elec. Mfg. Co., 61 S. Ct. 1020,
Texas applies the
in

the

"most significant relationship

Restatement

(Second)

(1971), to decide choice-of-law issues.
Co.,

665

S.W.2d

414,

420-21

(Tex.

of

Conflict

of

Laws

Duncan v. Cessna Aircraft

1984).

Section

6

of

the

Restatement describes the general principles relevant to the choice
of law analysis:

the needs of the interstate and international

systems; the relevant policies of the forum and other interested
states;

the relative interests of other interested states;

the

protection of justified expectations; the basic policies underlying
the field of law;

certainty,

predictability and uniformity;

ease in the determination and application of the law.
(Second)

of Conflict of Laws

§

6.

and

Restatement

In analyzing these general

A complete choice of law analysis is neither prohibited nor
required when considering the public interest factors.
See
Quintero v. Klaveness Ship Lines, 914 F.2d 717, 725 (5th Cir.
1990);
Perforaciones Exploraci6n y
Producci6n v.
Maritimas
Mexicanas, S.A. de C.V., 356 F. App'x 675, 680 (5th Cir. 2009).
23

13

principles as applied to tort claims, courts consider: the place of
injury; the place of the conduct causing the injury; the domicil,
residence,

nationality,

business of

the parties i

place

of

incorporation,

and the place where

between the parties is centered.

Id.

§

and

place

of

the relationship

145.

Defendant is a Qatari corporation with its principal place of
business in Qatar.

Plaintiff was employed by Defendant in Qatar,

pursuant to an Employment Contract with Qatari choice-of-law and
choice-of-forum provisions,
resident

permit.

and resided in Qatar under a Qatari

Plaintiff

and

undoubtedly centered in Qatar.

Defendant's

relationship

is

Furthermore, Defendant's allegedly

tortious conduct was committed in Qatar, and Plaintiff was injured
in

Qatar

Qatar.

has

the

most

significant

relationship

to

Plaintiff's tort claims, and Qatari law applies, which weighs in
favor

of

a

forum

non

conveniens

dismissal

from

this

Court.

Therefore, both the private and public factors support dismissal
for forum non conveniens in favor of a Qatari forum.
III.

Order

For the foregoing reasons, it is
ORDERED

that Defendants'

Motion

to Dismiss

for

Forum Non

Conveniens (Document No.8) is conditionally GRANTED, and this case
is DISMISSED upon the following conditions:

14

1.
Plaintiff within 45 days after the date of this
Order shall proceed with diligence to apply to Qatar for
a visa or visas, or such other permit(s) as Qatar may
require Plaintiff to obtain to allow Plaintiff to enter
and freely to remain in Qatar, and to exit and reenter
Qatar from time to time as may be necessary for Plaintiff
to retain counsel, and to do whatsoever may be necessary
to file and to prosecute to conclusion in the courts of
Qatar his lawsuit against Defendant.
2.
Defendant forthwith shall in good faith
diligently take all lawful actions within its power to
help facilitate and support Plaintiff's application for
such visa(s) or other permits(s) as may be required to
allow him to file and prosecute his lawsuit in Qatar as
above described.
3.
If the government of Qatar within 120 days
after the date that Plaintiff applies to Qatar for such
visa(s) or permit(s) as may be required, should either
deny or fail to act on Plaintiff's application, then
Plaintiff may make verified proof of his diligent efforts
to seek such permission, and of Qatar's denial of or
failure to act on his application, to demonstrate that
Qatar is not an adequate forum available to him for the
filing and prosecution of his case.
4.
In the event that the government of Qatar
within the 120 days specified above grants to Plaintiff
such visa(s) and permit(s) as required for him freely to
enter and exit Qatar to file and prosecute his case in
the courts of Qatar, Plaintiff shall proceed within 45
days thereafter to file his claim in the courts of Qatar,
and not later than 45 days thereafter, Defendant shall
appear and answer such lawsuit, fully waiving and
relinquishing any defense (s) based upon statutes of
limitations, laches, lack of personal jurisdiction,
improper service of process, or the counterparts to such
doctrines under the laws of Qatar, and shall otherwise
fully join issue on the merits in the litigation for
purposes of Plaintiff's claim being decided on the merits
in the foreign venue.
In the event that waiver of such
statute of limitations is not permitted under the laws of
Qatar, this condition shall not have been met, and
Plaintiff may, upon filing verified proof of such, apply
for reinstatement of his claims against Defendant in this
Court.

15

If Plaintiff is unable despite his diligent efforts to obtain
permission to enter Qatar to file and prosecute his lawsuit as
contemplated

by

this

Order

I

or

if

the

courts

of

Qatar

over

Plaintiff's opposition should decline to accept a case properly
filed by Plaintiff against Defendant, or if Defendant should fail
to respond, to join issue on the merits within the time allowed,
and/or to make the necessary waivers or agreements, then this case
may be

reinstated in this

accompanied

by

a

verified

Court upon application by Plaintiff
statement

of

the

grounds

for

such

reinstatement.
The Clerk will enter this Order, providing a correct copy to
all parties of record.
SIGNED at Houston, Texas, on this

~ay

of September, 2014.

~~~
0 "ERLEIN, JR.
ES DISTRICT JUDGE

16