Mari Kusada, Et Al., Appellants V. Jialin Niu, Et Al., Respondents

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MARI KUSADA, HAO LIU, RENGUI
YUAN, WEIPING LIU, KAITONG
CHEN, YAN LIU, HUI ZENG, FEI YU,
XI HUANG, XIAOBO “JEAN-PAUL”
CHEN, CHUNFA YANG, and
GUOYANG YU,
Appellants,
v.
JIALIN NIU, TROY MCBRIDE, DONG
WANG, CHUN ZHANG, SONGBAI
WAN, JUNNING CHEN, ZHIYANG
GU, Individuals; N&M MANAGEMENT
LLC, NIU ENTERPRISES LLC, NIU
ENTERPRISES II LLC, NIU
ENTERPRISES III LLC, NIU BEL-
RED MEDICAL LLC, NIU MEDICAL
BUILDING LLC, NIU SQUARED LLC,
NIU ENTERPRISES U VILLAGE LLC,
NIU ENTERPRISES KIRKLAND LLC,
KUNG FU PANDA LLC, 3660
FAIRWEATHER LLC, 3654
FAIRWEATHER LLC, 1632 MEDICAL
BUILDING LLC, 1700 MEDICAL
BUILDING LLC, NIU WORLD HOTEL
ENTERPRISES LLC, Washington
Limited Liability Companies; NIU
WORLD ENTERPRISES, LTD., a
Washington For Profit Corporation;
and DOES 1-10,
Respondents.
No. 85883-1-I
DIVISION ONE
UNPUBLISHED OPINION

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FELDMAN, J. — Plaintiffs appeal the trial court’s orders dismissing their fraud
claim against Jialin Niu, who they allege perpetrated a Ponzi scheme in China.1
We affirm the trial court’s ruling dismissing the claim on forum non conveniens
grounds and vacate its rulings dismissing the claim on other grounds.
I
Niu is a United States citizen who moved from Seattle, Washington to China
in the mid-1980s. 	Around 2006, Niu and Troy McBride founded a financial
education company in Shenzhen, China that they branded as “Golden Sun.”
Through Golden Sun, Niu and others taught classes on finance, business, and
investing. Plaintiffs each began attending Golden Sun courses in China between
2010 and 2014. 	Plaintiffs claim they were recruited by Niu and others, upon
completion of introductory courses, to invest substantial sums in Golden Sun’s
Real Estate Investment Trust and affiliated entities. Lastly, Plaintiffs claim that by
2015 	many 	Golden 	Sun 	participants 	had 	stopped 	receiving 	payments 	in
connection with their investments. In February 2015, Niu relocated from China to
Seattle.
Five years later, in February 2020, Plaintiffs filed this action in King County
Superior Court asserting fraud and unjust enrichment claims against Niu and
numerous other individuals and entities allegedly associated with Golden Sun. In
response, Defendants filed a motion to dismiss on forum non conveniens grounds.
After a hearing, the trial court denied Defendants’ motion because “Plaintiffs have
1 As used herein, “Plaintiffs” refers to Mari Kusada, Hao Liu, Rengui Yuan, Yan Liu, Weiping Liu,
Kaitong Chen, Hui Zeng, Fei Yu, Xi Huang, Xiaobo Chen, Chunfa Yang, and Guoyang Yu. The
term “Defendants” refers to Jialin Niu and several other individuals and entities who were previously
named in this action but are no longer parties on appeal.

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indicated a willingness to provide necessary witnesses and records from China.”
In May 2023, following discovery regarding Plaintiffs’ claims, Defendants filed a
renewed motion to dismiss on forum non conveniens grounds, arguing “discovery
has now confirmed that the alleged fraudulent conduct occurred in China” and “this
is in all fundamental respects a Chinese dispute.” This time, the court granted the
motion, noting “the evidence now before the Court demonstrate[s] that China is a
more appropriate forum for this litigation.”
In addition to her renewed motion to dismiss on forum non conveniens
grounds, Niu also filed two summary judgment motions in May 2023. 	In the first
such motion, Niu argued the court should dismiss the complaint because Plaintiffs
failed to timely file their claims within the applicable three-year limitations period
under RCW 4.16.080 after having purportedly “discovered their alleged claims by
2015.” 	In the second such motion, Niu argued “Plaintiffs do not have admissible
evidence to support the elements of their claims, and they should be dismissed.”
Despite having ruled that “China is a more appropriate forum for this litigation,” the
trial court addressed the merits of these motions and granted them as well.
Plaintiffs appeal.
II
Plaintiffs do not assign error to the trial court’s rulings with respect to any
defendants other than Niu, nor do they assign error to the trial court’s rulings with
respect to their unjust enrichment claim. 	Instead, they argue only that the trial
court erred in dismissing on forum non conveniens grounds their fraud claim
against Niu. We disagree.

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A
Although there is a presumption in favor of the plaintiff’s choice of forum,
Sales v. Weyerhaeuser Co., 163 Wn.2d 14, 19, 177 P.3d 1122 (2008), the forum
non conveniens doctrine gives trial courts “the discretionary power to decline
jurisdiction when the convenience of the parties and the ends of justice would be
better served if the action were brought in another forum,” J.H. Baxter & Co. v.
Cent. Nat’l Ins. Co. of Omaha, 105 Wn. App. 657, 661, 20 P.3d 967 (2001). The
forum non conveniens analysis is a two-step process in which the trial court must
(1) determine “whether an adequate alternative forum exists” and (2) if so,
“consider and balance various private and public interest factors.” 	Klotz v.
Dehkhoda, 134 Wn. App. 261, 265, 268, 141 P.3d 67 (2006). 	We review a trial
court’s dismissal on forum non conveniens grounds for abuse of discretion and will
not disturb the trial court’s decision unless it is “manifestly unfair, unreasonable, or
untenable.” J.H. Baxter, 105 Wn. App. at 661.
Regarding 	the 	first 	step 	in 	the 	forum 	non 	conveniens 	analysis, 	“an
alternative forum is adequate so long as some relief, regardless how small, is
available should the plaintiff prevail.” Klotz, 134 Wn. App. at 265. Plaintiffs do not
dispute that China is an adequate alternative forum. 	Consistent with this implied
concession, the record confirms some relief is available to Plaintiffs should they
prevail in China. Plaintiff Fei Yu successfully sued two entities related to Golden
Sun in a Chinese court for breach of a loan contract, and the court later ordered
one of these entities to sell real estate at auction to pay its judgment creditors. And
Plaintiff Mari Kusada’s son and sister both obtained arbitration awards against

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another entity affiliated with Golden Sun with whom they had invested funds. Niu
also submitted below a declaration from an attorney practicing in China who
confirmed the country “has a sophisticated legal system with a robust body of law
governing 	shareholder 	and 	investor 	relationships,” 	that 	“a 	shareholder 	may
potentially seek civil remedies for claims under theories of fraud/misrepresentation
and/or breach of contract,” and that Plaintiffs “could assert similar claims in a court
in China” compared to the claims they have filed in the United States. Accordingly,
the trial court did not abuse its discretion in finding that China is an adequate
alternative forum.2
Regarding the second step in the forum non conveniens analysis, the trial
court appropriately balanced the pertinent private and public interest factors. The
private interest factors concern “the convenience of the litigants.” 	Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 241, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981). They
include the following:
[T]he relative ease of access to sources of proof; availability of
compulsory process for attendance of unwilling, and the cost of
obtaining attendance of willing, witnesses; possibility of view of
premises, if view would be appropriate to the action; and all other
practical problems that make trial of a case easy, expeditious and
inexpensive.
Myers v. Boeing Co., 115 Wn.2d 123, 128, 794 P.2d 1272 (1990) (quoting Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1055 (1947)). 	The
2 Federal courts have likewise determined that China may offer an adequate alternative forum for
purposes of forum non conveniens. See Jiali Tang v. Synutra Int’l, Inc., 656 F.3d 242, 246 (4th Cir.
2011) (China was “an available, adequate, and more convenient forum to redress Plaintiffs’
grievances” regarding contaminated infant formula); Sinochem Int’l Co. v. Malaysia Int’l Shipping
Corp., 549 U.S. 422, 427, 435-36, 127 S. Ct. 1184, 167 L. Ed. 2d 15 (2007) (agreeing with the
district court’s “well-considered forum non conveniens appraisal” that a negligent misrepresentation
case “could be adjudicated adequately and more conveniently in Chinese Courts”).

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public interest factors concern the “convenience of the forum.” Piper Aircraft, 454
U.S. at 241. They are described as follows:
Administrative difficulties follow for courts when litigation is piled up
in congested centers instead of being handled at its origin. Jury duty
is a burden that ought not to be imposed upon the people of a
community which has no relation to the litigation. In cases which
touch the affairs of many persons, there is reason for holding the trial
in their view and reach rather than in remote parts of the country
where they can learn of it by report only. There is a local interest in
having 	localized 	controversies 	decided 	at 	home. 	There 	is 	an
appropriateness, too, in having the trial of a diversity case in a forum
that is at home with the state law that must govern the case, rather
than having a court in some other forum untangle problems in conflict
of laws, and in law foreign to itself.
Myers, 115 Wn.2d at 129 (quoting Gulf Oil, 330 U.S. at 508-09). Because forum
non conveniens is a flexible doctrine, no one factor is dispositive to the analysis,
and each case turns on its specific facts. 	Hill v. Jawanda Transp. Ltd., 96 Wn.
App. 537, 543, 983 P.2d 666 (1999).
The record supports the trial court’s finding that the private interest factors
weigh in favor of dismissal. Niu’s theory of the case is that, to the extent Plaintiffs’
monetary losses on their investments and loans did not result from their own poor
financial decision-making, other persons affiliated with Golden Sun—not Niu—
were responsible for these losses. The documentary and testimonial evidence Niu
needs to support this theory can be obtained more readily in China than in
Washington. The trial court found—and Plaintiffs concede on appeal—that these
non-party witnesses cannot be compelled to attend a trial in Washington or be
deposed because subpoenas from United States courts are not valid in China.
While some of these witnesses may voluntarily testify remotely from China, the

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trial court correctly observed that live trial testimony is preferable in fraud cases.3
Moreover, even if the evidence could be obtained, a trial here would require
extensive and costly translation services, as tens of thousands of pages of
documents would need to be accurately translated from Mandarin Chinese into
English.4
The record also supports the trial court’s finding that the public interest
factors similarly weigh in favor of dismissal. Niu’s attorney submitted a declaration
below estimating that a trial on Plaintiffs’ claims would last six weeks. Virtually all
witnesses (including Niu and all twelve Plaintiffs) would likely testify through
interpreters at trial. 	Additionally, Washington jurors have little connection to this
dispute, when considering that no Washingtonians were defrauded and, as
Plaintiffs acknowledge on appeal, “much of Niu’s misconduct occurred in China”
before she relocated to Seattle. While Plaintiffs have alleged some connection to
Washington—namely that Niu touted a false backstory about her education and
work history in this state to investors, has lived here since 2015, and spoke to
some Golden Sun participants about the platform’s continuing operations after
moving here—these connections are minimal at best. 	In contrast, the people of
China have a much greater interest in resolving this dispute locally to them. The
alleged fraud involved tens of thousands of persons who attended classes in China
organized by a company founded in China and invested in entities that used their
3 See also, e.g., Howe v. Goldcorp Inv. Ltd., 946 F.2d 944, 952 (1st Cir. 1991) (“Compulsory
process would seem especially important where, as here, fraud and subjective intent are elements
of the claim, making the live testimony of witnesses for the purposes of presenting demeanor
evidence essential to a fair trial.”).
4 The difficulty posed by this language barrier is particularly noteworthy in this case, as both parties
moved below to strike dozens of exhibits on the basis that they were not accurately translated from
Mandarin Chinese into English.

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funds primarily to acquire real estate in China. Golden Sun also has already been
subjected to media coverage, governmental investigations, and legal proceedings
in China. 	These unique administrative and local considerations weigh heavily in
favor of China as the appropriate forum.
After weighing the private and public interest factors, the trial court found
“the balance of factors is strongly in favor of Defendants” and “the convenience of
the parties and the ends of justice would be better served if this action was brought
and tried in China.” 	Because the trial court considered all relevant private and
public interest factors and its balancing of these factors was reasonable, its forum
non conveniens ruling is accorded substantial deference. 	Sandhu Farm Inc. v.
A&P Fruit Growers Ltd., 25 Wn. App. 2d 577, 589, 524 P.3d 209 (2023). And as
discussed above, it is undisputed that China is an adequate alternative forum. On
this record, the trial court’s dismissal of Plaintiffs’ fraud claim against Niu on forum
non conveniens grounds is not manifestly unfair, unreasonable, or untenable. See
J.H. Baxter, 105 Wn. App. at 661.
B
Notwithstanding 	the 	above 	analysis, 	Plaintiffs 	argue 	the 	forum 	non
conveniens doctrine is inapplicable because they did not file suit in Washington for
the purpose of harassing Niu, who currently resides here. 	This argument fails in
light of our Supreme Court’s recognition that “[a] finding of harassment is not
necessary for dismissal” on forum non conveniens grounds. Myers, 115 Wn.2d at
134. Instead, the overriding focus is whether “‘the convenience of the parties and
the ends of justice would be better served if the action were brought and tried in

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another forum.’” Id. (quoting Johnson v. Spider Staging Corp., 87 Wn.2d 577, 579,
555 P.2d 997 (1976)). As discussed above, adjudicating this case in China would
better serve those primary purposes, even though Niu currently resides in
Washington. 	See id. (Washington was an inconvenient forum despite defendant
being a corporation with its principal place of business in this state).
Next, Plaintiffs argue the trial court’s forum non conveniens analysis is
flawed because it “did not consider the enormous efforts and resources already
expended in discovery over the past four years at all.” This argument ignores the
language in the trial court’s dismissal order addressing Plaintiffs’ discovery-related
arguments. 	The order notes that the court denied Defendants’ initial forum non
conveniens motion filed in May 2020 because “[a]t that time, Plaintiffs stated they
would make evidence available and that relevant information was located in the
United States.” But the order then states that “more information is now available
to the Court” following “significant discovery since then” and, as a result, “the
evidence now before the Court demonstrate[s] that China is a more appropriate
forum for this litigation.” Thus, contrary to Plaintiffs’ assertions, the trial court did
consider the parties’ efforts and resources already expended in discovery.5
5 Moreover, the trial court’s ruling on this point is consistent with Washington case law, which
recognizes that discovery may be “necessary to develop a record in support of” a motion to dismiss
for forum non conveniens. See Klotz, 134 Wn. App. at 270 n.2 (affirming forum non conveniens
dismissal despite plaintiff’s argument that defendant waived the issue by participating in discovery).
While we acknowledged in Klotz that “[t]here may be cases where significant discovery expenses
and elapsed time preclude dismissal on forum non conveniens grounds” (id.), this is not such a
case. Plaintiffs initially avoided dismissal on forum non conveniens grounds by assuring the trial
court they were “willing and able to produce evidence here.” As noted in section I above, the trial
court relied on this representation in denying Niu’s first forum non conveniens motion. 	But
subsequent discovery proved that Plaintiffs’ assurances were unfounded and, instead, revealed
that most of the relevant evidence in this case—including over a hundred previously undisclosed
non-party witnesses—is located in China. 	Because discovery significantly undermined the trial
court’s justification for denying Niu’s initial forum non conveniens motion, the court did not abuse
its discretion by granting Niu’s renewed motion.

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Plaintiffs also contend that Niu has not identified with sufficient particularity
how she intends to use discovery available in China to defend herself. 	Plaintiffs
overstate Niu’s burden. A defendant seeking dismissal on forum non conveniens
grounds need not detail “the witnesses they would call and the testimony these
witnesses would provide if the trial were held in the alternative forum.” 	Piper
Aircraft, 454 U.S. at 258. 	That is so because a defendant cannot reasonably be
expected to identify or interview witnesses located beyond the reach of compulsory
process. 	Id. 	Rather, the defendant need only “provide enough information to
enable the [trial court] to balance the parties’ interests.” 	Id. 	Here, Niu’s attorney
submitted a declaration and a witness disclosure identifying, based on information
provided by Plaintiffs in their discovery responses, the relevant witnesses located
in China that Niu intends to call at trial, any entities with which they are affiliated,
and their connections to this case. 	This information sufficiently enabled the trial
court to balance the parties’ interests.
Lastly, Plaintiffs assert that dismissal on forum non conveniens grounds is
unwarranted because Niu “refuses to return to China” and, accordingly, “isn’t even
willing to go to the alternative forum.” 	In so arguing, Plaintiffs overlook Niu’s
express offer to submit to the jurisdiction of a Chinese court. In her renewed forum
non conveniens motion, Niu requested that the trial court dismiss this case “on the
conditions that Defendant[] Niu . . . will (a) accept service from an appropriate
Chinese court pursuant to Chinese law; and (b) not assert any statute of limitations
defense that arose on or after this action was filed against the Plaintiffs here in any

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subsequent action they bring in China.”6 Niu also submitted a declaration from an
attorney practicing in China who confirmed that Chinese courts may enter default
judgments against defendants who do “not appear to defend” against lawsuits filed
against them. Thus, at a minimum, Niu has agreed to be subject to the jurisdiction
of a Chinese court and risk a default judgment being entered against her if she
does not appear in that forum. And should Plaintiffs obtain a judgment against Niu
in a Chinese court, they could seek to have this foreign judgment recognized and
enforced in Washington. 	See generally Alterna Aircraft V.B. v. SpiceJet Ltd., __
Wn. App. 2d. __, 559 P.3d 1026 (2024). 	Plaintiffs have not established the trial
court abused its discretion in dismissing their fraud claim against Niu on forum non
conveniens grounds.
III
Because the trial court did not abuse its discretion in dismissing Plaintiffs’
fraud claim against Niu on forum non conveniens grounds, we need not address
the trial court’s rulings granting Niu’s summary judgment motions regarding the
statute of limitations and merits of Plaintiffs’ fraud claim. 	Any such grounds for
dismissal should appropriately be reserved for disposition in a refiled action in
China. 	We therefore vacate the trial court’s rulings dismissing Plaintiffs’ fraud
6 While the trial court did not include these conditions in its dismissal order, Niu reiterated these
conditions on appeal. When asked at oral argument whether Niu would abide by her previous
stipulation, Niu’s counsel stated, “That is the specific relief that we asked for below, and we’re not
going to disagree with that now.” Wash. Ct. of Appeals oral argument, Kusada v. Niu, No. 85883-
1-I (Feb. 27, 2025), at 14 min., 41 sec. to 14 min., 46 sec. (on file with court). Our Supreme Court
has similarly held “[i]f the court determines that the alternative jurisdiction offers a more convenient
forum for the litigation of the case, then it may dismiss the action ‘“subject to a stipulation that the
defendant submit to jurisdiction in a more convenient forum.’”” Sales, 163 Wn.2d at 21 (emphasis
added) (quoting Myers, 115 Wn.2d at 128) (quoting Werner v. Werner, 84 Wn.2d 360, 370, 526
P.2d 370 (1974)). “The stipulation requirement gives meaning to the court’s determination that a
specific forum offers a better location for the litigation of the case.” Id.

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claim against Niu on these other grounds.7 Consistent with the trial court’s forum
non conveniens ruling and Niu’s stipulation at oral argument (see footnote 6
above), this case may properly proceed, if at all, in the courts of China.
WE CONCUR:
7 Both parties acknowledged at oral argument in this case that the trial court’s summary judgment
orders should be vacated if we affirm its forum non conveniens dismissal order. 	Wash. Ct. of
Appeals oral argument, Kusada v. Niu, No. 85883-1-I (Feb. 27, 2025), at 7 min., 40 sec. to 7 min.,
53 sec. and 13 min., 15 sec. to 13 min., 54 sec. (on file with court). Courts have similarly so held.
See, e.g., Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 427, 431-32, 127 S.
Ct. 1184, 167 L. Ed. 2d 15 (2007) (noting that a dismissal short of reaching the merits, such as a
forum non conveniens dismissal, “means that the court will not proceed at all to an adjudication of
the cause”) (internal quotation marks omitted); Courboin v. Scott, 596 F. App’x 729, 735 (11th Cir.
2014) (vacating portion of district court’s order dismissing a claim under FRCP 12(b)(6) because it
should not have addressed the merits of plaintiff’s claims after concluding it lacked personal
jurisdiction); Troni v. Banca Popolare Di Milano, 129 A.D.2d 502, 504 (N.Y. App. Div. 1987) (holding
lower court “should not have addressed the merits once it dismissed the action on forum non
conveniens grounds” because “[h]aving found New York to be an inappropriate forum, the merit or
lack thereof of the action is best reserved for the courts of Italy”).