The opinion of the court was delivered by: NOONAN
This is a motion by defendant to dismiss this action on the ground of forum non conveniens.
The defendant herein had originally moved this court to dismiss the complaint and to vacate the service of summons and complaint, on the ground that the defendant was not 'doing business' within this district, so as to subject it to the jurisdiction of this court, and that service on the Brazil Export Corporation was not valid service on defendant.
The District Court granted this motion. However, on appeal to the Court of Appeals for the Second Circuit, the judgment of the District Court was reversed, Latimer v. S/A Industrias Reunidas F. Matarazzo, 2 Cir., 175 F.2d 184, 186, and the cause remanded with these instructions: 'The court will assume that the defendant carries on a continuous business in New York, but it will hear the parties as to whether the circumstances are such as would support a plea, forum non conveniens, if it had so pleaded in an action where jurisdiction was unquestioned.'
Therefore, the sole question before this court is whether the circumstances here present are such that this court should, in the exercise of its discretion and in the interest of justice, decline jurisdiction under the principle of forum non conveniens.
The action is one for breach of an employment contract and to recover for services performed for the defendant in Brazil, by the plaintiff, as an engineer. Plaintiff is a citizen of Georgia. Defendant is a Brazilian corporation, whose principal place of business is in Sao Paulo, Brazil. It has no office in this district. Defendant is 'engaged in the manufacture of textiles and allied industries for the South American trade exclusively.' It does not 'make sales or deliver goods in the United States' with the exception of one sale, made in 1945. Defendant does purchase equipment and materials in the United States and Canada (though it has only made one purchase in New York, in 1947), and to facilitate these purchases, defendant maintains a drawing account in a New York bank. Such purchases are made by the Brazil Export Corporation, upon whom service of the summons and complaint was made, and which acts as 'buyer' for the defendant and other South American corporations 'with no authority to do more than to transmit offers and acceptances on a strictly commission basis'. Brazil Export Corporation is a corporation organized under the laws of New York and is doing business in New York City. It is a separate corporate entity from defendant; neither one is a stockholder of the other.
The employment contract which is the subject matter of this suit was drawn and executed in New York at the office of Brazil Export Corporation and executed by it, as the defendant's agent, on August 20, 1945. By the terms of the contract, plaintiff was employed by defendant for a three-year period. The contract was to be performed in South America, where the plaintiff went, in October, 1945, and remained for about two years. In June 1947, while plaintiff was on a visit to the United States, the contract was terminated. The circumstances precipitating the termination are disputed by the parties.
For emphasis, it is again noted that the sole question before this court is whether the circumstances herein are such as to sustain a plea, forum non conveniens, assuming the jurisdiction to be unquestioned.
In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 942, 91 L. Ed. 1055, the court said: 'The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.'
The doctrine of forum non conveniens was, in essence, codified by Sec. 1404(a), Title 28 U.S.C.A. Auburn Capitol Theatre Corp. v. Schine Chain Theatres, D.C., 83 F.Supp. 872. Maloney v. New York, N.H. & H.R. Co., D.C., 88 F. Supp. 568. However, the enactment of this section providing for transfer rather than dismissal- the only remedy available under forum non conveniens- has caused to be evolved a decisional tendency wherein the courts require less of a showing of 'abuse of process' while being more willing to grant relief on a showing of inconvenience.
Sec. 1404(a) is not applicable here, for the wording of the statute is 'a district court may transfer any civil action to any other district or division where it might have been brought.' Therefore, though it is assumed for the purposes of this motion that jurisdiction is unquestioned in this district, it appears clear from the facts now before the court, that there is no other district or division in the United States where for jurisdictional reasons, the action could have been brought. Rather, the real remedy actually sought by this motion is a dismissal of the cause.
Sec. 1404(a) has not limited the application of forum non conveniens to cases which are capable of being transferred from one Federal district to another. Otherwise, it would be a denial of a Federal Court's inherent power to refuse jurisdiction in cases which should not have been brought in the United States, but rather in the courts of a foreign jurisdiction. DeSairigne v. Gould, D.C., 83 F.Supp. 270.
In the application of forum non conveniens, the court, in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055, said: 'The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.'
Further, The Supreme Court in the Gulf Oil case, supra, noted the difficulty of cataloguing those circumstances which would justify the sustaining or denial of a plea of forum non conveniens. However, the court did set forth criteria as a guide in the determination of such a plea. These include relative ease of access of proof; availability of compulsory process for the attendance of unwilling, and the cost of obtaining the attendance of willing, witnesses; and other practical considerations that make the trial of a case easy, expeditious and inexpensive.
In this case, clearly, this is an inconvenient forum for the defendant, but it is by no means apparent that the choice of forum has been prompted by an intent to 'oppress' 'vex' or 'harass', on the part of plaintiff. This conclusion has not been arrived at by speculation. The simple fact is that there is no ...