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(applying Gilbert and Koster to a forum non conveniens inquiry).

1.

The Ninth Circuit’s Determination That The District Court Abused Its Discretion Is Consistent With The Holdings Of Every Other Circuit.

The Court of Appeals identified two errors in the District Court’s analysis that undermined the District Court’s ability to properly engage in the forum non conveniens inquiry.

First, the Court of Appeals determined that the District Court failed to place the burden of proving forum non conveniens on the moving party. This Court has held that the moving party bears the burden of making a “clear showing” of facts that “either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff’s convenience, which may be shown to be slight or nonexistent, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems.” Koster, 330 U.S. at 524. Not surprisingly, every court of appeals that has considered the question, including the Ninth Circuit, has followed this Court’s holding in Koster and has placed the burden of proof on the moving party.1 Petitioner does not dispute this rule of law, but only its

1See Duha v. Agrium, 448 F.3d 867, 874 (6th Cir. 2006); In re Ford Motor Co., Bridgestone/Firestone N. Am. Tire, LLC, 344 F.3d 648, 652 (7th Cir. 2003); McLennan v. Am. Eurocopter Corp., Inc., 245 F.3d 403, 424 (5th Cir. 2001); Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1282 (11th Cir.

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