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April 2, 1963

Percival SPENCER, Plaintiff,

The opinion of the court was delivered by: ABRUZZO

The defendant moves this Court for an order pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the action for improper jurisdiction and forum non conveniens.

Plaintiff, a resident of Jamaica, West Indies, instituted this action against the defendant, a New York corporation, to recover damages for personal injuries sustained in Kingston, Jamaica, on June 28, 1960, aboard the S. S. ALCOA CAVALIER, a vessel owned and operated by the defendant.

Plaintiff sustained his injuries during a lunch hour. He had brought a box of lunch to his father who was working aboard the vessel. At the request of the stevedore foreman he helped to move a pontoon. During the moving operations he was struck by the pontoon through the alleged faulty handling of the vessel's equipment and injured as a result of which his left leg had to be amputated.

 The defendant contends, and this has been conceded by the plaintiff, that all of the witnesses in this action are residents of Jamaica. The defendant also contends that the plaintiff's hospitalization and medical treatment were afforded and obtained only in Jamaica; that plaintiff's vessel has not been in New York for over ten years and that the plaintiff's legal status and the status of the stevedore gang will have to be resolved according to Jamaica law. The defendant attacks the right of the plaintiff to stay in this Court, first, on the doctrine of forum non conveniens and, second, that this Court should utilize its discretion and decline jurisdiction.

 Plaintiff's brief sets up the claim that because the defendant's time to answer was extended but approved, pursuant to Rule 6(b) of the Federal Rules of Civil Procedure, this bars the defendant's motion (citing Orange Theatre Corp. v. Rayherstz Amusement Corp., 130 F.2d 185 (C.A.3d). This rule and the case cited are applicable only to venue and not jurisdiction or forum non conveniens.

 Respecting the principle of forum non conveniens, such a motion is not required to be made before answer. See Nowotny v. Turner, 203 F.Supp. 802 (M.D.N.C.).

 In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, p. 504, 67 S. Ct. 839, p. 841, 91 L. Ed. 1055, it was said:

 'Indeed, the doctrine of forum non conveniens can never apply if there is absence of jurisdiction or mistake of venue.

 'This Court, in one form of words or another, has repeatedly recognized the existence of the power to decline jurisdiction in exceptional circumstances. As formulated by Mr. Justice Brandeis, the rule is:

 'Obviously, the proposition that a court having jurisdiction must exercise it, is not universally true; else the admiralty court could never decline jurisdiction on the ground that the litigation is between foreigners. Nor is it true of courts administering other systems of our law. Courts of equity and of law also occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or non-residents or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal.' Canada Malting Co., Ltd., v. Paterson Steamships, Ltd., 285 U.S. 413, 422-423, 52 S. Ct. 413, 76 L. Ed. 837.

 Gulf Oil besides disposing of the plaintiff's procedural objection is also applicable to the defendant's application. That case originated in the United States District Court for the Southern District of New York (D.C., 62 F.Supp. 291). In said case the plaintiff, a resident of and owner of a warehouse in Lynchburg, Virginia, sued the defendant in the Southern District of New York, claiming that through the defendant's negligence in delivering gasoline at the warehouse it took fire and was destroyed together with most of its contents. The defendant, a Pennsylvania corporation authorized to do business in New York State and in Virginia, moved for an order dismissing the complaint 'upon one or the other or both of the following grounds': (1) Improper venue and (2) that venue should not be assumed by the United States District Court for the Southern District of New York. Judge Leibell dismissed the complaint declaring that the Court refused jurisdiction of the action. He based his dismissal on the ground that if the action had been brought in a New York State court, that court, in the exercise of sound discretion could have declined jurisdiction. The Court of Appeals for the Second Circuit reversed (153 F.2d 883). The Supreme Court reversed the Court of Appeals (330 U.S. 501, p. 507, 67 S. Ct. 839, p. 842, 91 L. Ed. 1055). It held:

 '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. * * *'

 This latter holding was cited in De Sairigne v. Gould, 83 F.Supp. 270 (S.D.N.Y.). In said case the plaintiff alleged in his complaint that he was a citizen of France and a resident of New York. He sued in the Southern District of New York a citizen of the State of New York and of the United States who resided in France to recover on a check issued in France and payable to the plaintiff's order on an account of the defendant in the United States Trust Company of New York. The check was presented to the bank by plaintiff but payment was refused. A second cause of action was for work, labor and services performed at the defendant's special instance and request which included giving the defendant shelter, asylum, comfort and protection in the plaintiff's home and that defendant agreed to and did give plaintiff the check in discharge and payment of defendant's obligation to plaintiff. In dismissing the complaint on the ground of forum non conveniens, the Court held (p. 272 of 83 F.Supp.):

 'Under such circumstances, this court has the right to decline, and should decline, to entertain jurisdiction. An alien has no constitutional right to sue in our courts. Heine v. New York Life Ins. Co., 9 Cir., 50 F.2d 382, Affirming, D.C., 45 F.2d 426. Nor does even an American citizen have an absolute right, under all circumstances, to sue in an American court. U.S. Merchants' & Shippers' Ins. Co. v. A/S Den Norske Afrika Og Australie Line, 2 Cir., 65 F.2d 392. As Mr. ...

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