This opinion is nonprecedential except as provided by
                       Minn. R. Civ. App. P. 136.01, subd. 1(c).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A23-1906

                              Steven A. Sugarman, et al.,
                                     Appellants,

                                           vs.

                          Muddy Waters Capital, LLC, et al.,
                                  Respondents,

                                    Jason Galanis,
                                      Defendant,

                            Castalian Partners, LLC., et al.,
                                     Respondents,

                               David Q. Mathews, et al.,
                                    Respondents.

                                  Filed June 3, 2024
                                      Affirmed
                                   Connolly, Judge

                            Hennepin County District Court
                              File No. 27-CV-21-11850

Heather L. Marx, Cozen O’Connor, Minneapolis, Minnesota; and

Jeremy E. Deutsch (pro hac vice),Cozen O’Connor, New York, New York (for appellants)

John M. Baker, Michelle K. Erickson, Greene Espel PLLP, Minneapolis, Minnesota (for
respondents)

Ambika Kumar (pro hac vice), Davis Wright Tremaine LLP, Seattle, Washington (for
respondents Muddy Waters Capital, LLC, et al.)

David F. Standa, pro hac vice, Greenspoon Marder LLP, Chicago, Illinois (for respondents
Castalian Partners, LLC, et al.)
Evangeline A.Z. Burbridge, pro hac vice, Lewis & Llewellyn LLP, San Francisco,
California (for respondents David Q. Mathews et al.)

         Considered and decided by Connolly, Presiding Judge; Gaitas, Judge; and Larson,

Judge.

                            NONPRECEDENTIAL OPINION

CONNOLLY, Judge

         In this appeal following our remand to the district court, appellants challenge the

forum-non-conveniens (FNC) dismissal of their claims, arguing that the district court

misapplied the FNC doctrine and failed to safeguard appellants’ procedural rights when it

dismissed the case. Because we see no abuse of discretion in the district court’s compliance

with the instructions on remand, we affirm.

                                           FACTS

         Appellants in this matter are Steven Sugarman, a California businessman, and two

Delaware companies headquartered and registered in California, of which Sugarman was

a managing member. Respondents are Jason Galanis1, incarcerated in California; James

Gibson, formerly a Minnesota resident and executive officer of a Delaware limited

partnership with its principal place of business formerly in Minnesota and of a former

Minnesota limited liability corporation with its principal place of business formerly in

Minnesota; Carson Block, a California resident and the founder of four “Muddy Waters”

entities, which are also respondents; David Mathews, a Texas resident, and a limited

liability corporation with its principal place of business in Texas.


1
    Jason Galanis was a defendant but is not a respondent.

                                              2
       In September 2021, when Gibson was still a resident of Minnesota and the two

entities of which he was an executive officer had their principal places of business in

Minnesota, appellants brought this action against respondents in Hennepin County,

Minnesota, for defamation, civil conspiracy to defame, aiding and abetting defamation, and

violation of the Minnesota Unfair and Deceptive Trade Practices Act. Respondents moved

to dismiss on FNC grounds and, inter alia, on grounds of untimeliness under the Minnesota

and California anti-SLAPP statutes. In 2022, the district court granted respondents’ FNC

motion to dismiss, conditioned on the availability of an alternative forum in California.

Appellants challenged the dismissal.

       In Sugarman v. Muddy Waters Capital, No. A22-0659, 

, at *6

(Minn. App. Nov. 14, 2022), we reversed the FNC dismissal and remanded for the district

court to address the adequacy prong of the FNC analysis and to apply the proper

presumption in weighing the public-and-private interest factors, noting that, if the district

court again dismissed on FNC grounds, “it must do so on the condition that California is

an available alternative forum after addressing the applicable statutes of limitations in

California and Minnesota, as well as both states’ anti-SLAPP laws.”

       In 2023, following briefing and a hearing on these issues, the district court again

dismissed appellants’ claims on FNC grounds, with the condition that respondents “agree

to waive defenses based on personal jurisdiction, process, and statutes of limitations which

did not exist in Minnesota as of September 29, 2021.” Appellants again challenge the FNC

dismissal, arguing that the district court abused its discretion in determining that California




                                              3
was an adequate alternative forum and in deciding that, even though appellants had a strong

presumption in favor of their chosen forum, other factors rebutted the presumption.2

                                        DECISION

       A district court has broad discretion, on remand, to take any action “not inconsistent

with the remand instructions,” and its compliance with those instructions is reviewed under

a “deferential abuse-of-discretion standard.” Janssen v. Best & Flanagan LLP, 

 (Minn. 2005).

               The doctrine of [FNC] allows a district court with jurisdiction
               over the subject matter and the parties discretion to decline
               jurisdiction over a cause of action when another forum would
               be more convenient for the parties, the witnesses, and the
               court. A[n FNC] determination is committed to the sound
               discretion of the [district] court, to which substantial
               deference is given. We will not reverse a[n FNC] dismissal
               by the district court unless there has been an abuse of
               discretion. A district court abuses its discretion in the context
               of [FNC] when the court makes an erroneous legal conclusion
               or a clearly erroneous factual conclusion.

Paulownia Plantations de Panama Corp. v. Rajamannan, 

 (Minn.

2009) (quotations and citations omitted).




2
  At oral argument, there was discussion as to whether the district court had correctly
described the California anti-SLAPP statute as substantive or procedural. In Minnesota,
“dismissal based on [FNC] must be conditioned on the preservation of the benefits of those
laws as were applicable in Minnesota” at the time the case was filed because “[p]rocedural
rights of a party should not yield to convenience.” Kennecott Holdings Corp. v. Lib. Mut.
Ins. Co., 

 (Minn. 1998). We interpret the district court’s order as
complying with this point of law and trust that a California court can determine whether a
California statute sets forth substantive or procedural law.

                                              4
I.     California as an Adequate Alternative Forum

       In the FNC context, “‘[a]dequacy’ encompasses whether the party has an effective

remedy in the alternative forum.” Id. at 134. The inadequacy of an alternative forum is a

“rare circumstance.” Id. at 137. On remand, the district court was instructed that, if it

again dismissed the case on FNC grounds, it must first address the statutes of limitations

and the anti-SLAPP laws of both Minnesota and California.              Sugarman, 

, at *6.

       A. Statute of Limitations

       The parties agree that the relevant statute of limitations in California is one year,

while the relevant statute of limitations in Minnesota is two years. Appellants argue that

they are entitled to reversal of the dismissal of their claims because California’s statute of

limitations bars appellants’ claims, thus depriving appellants of an “effective remedy,” and

because the district court did not adequately address the statutes of limitations in its order.

See 

 (instructing the district court to address the statutes of limitations on remand).

       The district court conditioned the dismissal on respondents’ agreement “to waive

defenses based on . . . statutes of limitation which did not exist in Minnesota as of

September 29, 2021,” when appellants filed their case. See Kennecott Holdings Corp., 561

N.W.2d at 192 (holding that “[t]he parties should be in the same position in the alternative

forum as they were in the original forum” and modifying the condition to read “defendants

agree to waive defenses based on . . . statutes of limitation which did not exist in Minnesota

as of November 17, 1995”), aff’d, 

 (Minn. 1998). Respondents argue that,

contrary to appellants’ assertion that respondents “acknowledge that appellants’ claims are


                                              5
timely under Minnesota law,” the statute of limitations bars appellants’ claims regardless

of whether California or Minnesota law applies, and therefore the district court’s failure to

discuss the two statutes in more detail is “immaterial.”

       If appellants will face an untimeliness argument in either Minnesota or California

and respondents have waived the right to rely on any statute of limitations that did not exist

in Minnesota when appellants filed their case, the district court’s decision that California

was an adequate transfer forum was not an abuse of discretion.

       B. The Anti-SLAPP Statutes

       The district court noted that appellants wanted the dismissal to “be further

conditioned on not allowing [respondents] to invoke California’s Anti-SLAPP protections”

but declined to impose this condition.

       The Minnesota Supreme Court declared Minnesota’s anti-SLAPP statute to be in

part unconstitutional in Leiendecker v. Asian Women United of Minn., 

 (Minn. 2017), stating:

                     A party moving to dismiss a claim based on the anti-
              SLAPP law must make a threshold showing that the underlying
              claim materially relates to an act of the moving party that
              involves public participation. After the moving party makes
              this threshold showing, the burden shifts to the responding
              party. Clauses 2 and 3 of Minnesota Statutes § 554.02,
              subdivision 2, explain the responding party’s burden:
                     (2) the responding party has the burden of proof, of
              going forward with the evidence, and of persuasion on the
              motion;
                     (3) the court shall grant the motion and dismiss the
              judicial claim unless the court finds that the responding party
              has produced clear and convincing evidence that the acts of the
              moving party are not immunized from liability under section
              554.03 [i.e., are lawful conduct or speech that is genuinely


                                              6
              aimed in whole or in part at procuring favorable government
              action].

                     ....

                      Clauses 2 and 3 violate the responding party’s right to a
              jury trial in two ways as applied to actions at law alleging torts.
              First, they transfer the jury’s fact-finding role to the district
              court. Second, they require the responding party to meet a
              higher burden of proof before trial (clear and convincing
              evidence) that it would have to meet at trial (preponderance of
              the evidence).

                     ....

              [C]lauses 2 and 3 of section 554.02, subdivision 2, are
              unconstitutional as applied to claims at law alleging torts . . . .

(Quotations, citations, and footnotes omitted.)

       In contrast, California case law states that its anti-SLAPP statute “does not impair

the right to a trial by jury because the trial court does not weigh the evidence in ruling on

the motion [to dismiss], but merely determines whether a prima facie showing has been

made which would warrant the claim going forward” and “is analogous to other statutes

requiring the plaintiff to make a threshold showing, which are aimed at eliminating

meritless litigation at an early stage.” Moore v. Shaw, 

, 

 (2004).

       The district court cited and quoted both Leiendecker and Moore and concluded that

                      [s]ince California’s anti-SLAPP statute does not have
              the same constitutional infirmities as Minnesota’s anti-SLAPP
              statute, the potential applicability of California’s anti-SLAPP
              statute does not deprive [appellants] of an effective remedy or
              render California an inadequate forum. This case does not
              present the “rare circumstance” where the alternative forum is
              somehow inadequate.


                                              7
Given our deferential standard of review and our limited instruction that the district court

evaluate the anti-SLAPP law on remand, we do not see an abuse of discretion in the district

court’s determination that California was an adequate alternative forum.

II.    Appellants’ Choice of Forum

       Generally, there is “a strong presumption . . . in favor of the plaintiff’s choice of

forum.” Paulownia, 

. This court determined that the “district court

failed to afford appellants the strong presumption in favor of their chosen forum” and erred

in stating that “the strong presumption in favor of appellants’ choice of forum applies with

less force here.” Sugarman, 

, at *4-6. On remand, the district court

was directed “to apply the proper presumption when considering whether that presumption

was rebutted by the public-and-private interest factors.” Id. at *6.3

       The district court first quotes Reed v. Univ. of N. Dakota, 

(Minn. App. 1996) (“Forum shopping is not encouraged in Minnesota because it frustrates

the maintenance of interstate order.”), rev. denied (Minn. Mar. 28, 1996), to support its




3
  Private-interest factors include: (1) the relative ease of access to sources of proof; (2) the
availability of compulsory process for attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; (3) possibility of view of the premises, if view would be
appropriate to the action; and (4) any other practical problems that make trial of a case
easy, expeditions, and inexpensive. Paulownia, 

. Public-interest factors
include: (1) the administrative difficulties flowing from court congestion; (2) the local
interest in having localized controversies decided at home; (3) the interest in having the
trial of a diversity case in a forum that is familiar with the law that must govern the action;
(4) the avoidance of unnecessary problems in conflict of laws, or in the application of
foreign law; and (5) the unfairness of burdening citizens in an unrelated forum with jury
duty. 

                                               8
view that Minnesota’s “policy disfavoring forum shopping cannot be reconciled with a

full-fledged presumption in favor of [appellants’] choice of forum.” We agree.

       As respondents point out, numerous courts have held that deference to a plaintiff’s

choice of forum is “negated by impermissible forum shopping.” Hartford Fire Ins. Co. v.

Retail Mgmt. Sols., LLC, No. 13-723 ADM/FLN, 

, at *3 (D. Minn. Sept.

22, 2014) (refusing to defer to plaintiff’s choice to sue in Minnesota, rather than await suit

in Washington, to avoid Washington treble damages); see also Iragorri v. United Techs.

Corp., 

 (2d Cir. 2001) (“[D]iminishing deference [is due] to a

plaintiff’s forum choice to the extent that it was motivated by tactical advantage.”); Doe v.

Epic Games, Inc., 

, 1041 (N.D. Cal. 2020) (“A plaintiff’s choice of

forum receives only minimal deference if the operative facts did not occur within the forum

and the forum has no interest in the parties or subject matter.”); Gonzales v. Charter

Commc’ns, LLC, No. 20-CV-02689-EMC, 

, at *2 (N.D. Cal. Aug. 24,

2020) (“[W]here plaintiffs have engaged in forum shopping or chosen a forum with no

connection to the underlying dispute, the burden on the defendant is reduced and it is easier

for the defendant to show that the balance of convenience favors transfer.” (quotations

omitted)); Merrick Bank Corp. v. Savvis, Inc., No. 4:08CV00675 ERW, 

, at *5 (E.D. Mo. Dec. 8, 2008) (“[A]ny remaining deference is negated by

evidence that [p]laintiff’s choice of forum was apparently based on impermissible forum

shopping.”).

       Appellants are not citizens of Minnesota, the witnesses do not appear to be in

Minnesota, and appellants would seem to be pursuing this action in Minnesota only


                                              9
because they see it as a more legally advantageous venue. The district court applied the

proper presumption in favor of appellants and determined that it was rebutted.

      Affirmed.




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