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FIORENZA v. UNITED STATES STEEL INTL.

December 17, 1969

Augustino FIORENZA, Plaintiff,
v.
UNITED STATES STEEL INTERNATIONAL, LTD., a Delaware corporation, and United States Steel International (New York), Inc., a New Jersey corporation, Defendants



The opinion of the court was delivered by: CROAKE

MEMORANDUM

This is a motion that presents some extremely interesting questions as to the scope of the doctrine of forum non conveniens in a situation where plaintiff, alleging a foreign-based tort, is a noncitizen and non-resident of the United States suing a corporation that has its principal place of business within this jurisdiction. Plaintiff, Augustino Fiorenza, is a citizen of Italy and a resident of the Grand Bahama Island. The defendant, United States Steel International, Ltd. (hereinafter referred to as 'Limited'), is a Delaware corporation with its principal place of business in New York and is doing business in the Bahamas. *fn1"

Plaintiff's asserted claim for relief is based on Injuries he allegedly sustained on March 8, 1967, while working for defendant, Limited, on Grand Bahama Island. Plaintiff allegedly sustained serious injuries when a steel tank on which he was working exploded as the result of the negligence of defendant, Limited.

 The procedural history of this case has been somewhat involved. Plaintiff first brought suit in the United States District Court for the Southern District of Florida against Limited and United States Steel International (New York), Inc. Said defendants moved to quash service of process and to dismiss the complaint in that court on jurisdictional grounds. The motion was granted on February 14, 1968 by the Hon. Ted Cabot. Thereafter, plaintiff brought suit against United States Steel Corp. in that same Court. That defendant's motion for summary judgment was granted on May 29, 1969 by Judge Cabot.

 Subsequently, on July, 31, 1969, plaintiff initiated the instant action in this Court. As indicated supra, Limited is the sole remaining defendant in this action.

 Defendant Limited now moves, citing Rule 12(b)(3) of the Federal Rules of Civil Procedure, that this Court dismiss plaintiff's complaint on the ground of forum non conveniens. This motion came on before the undersigned on November 25, 1969, and decision was reserved.

 We have examined defendant's motion papers and the supporting affidavits of Louis A. Craco, counsel for defendant, and of William W. Sywak, Secretary of defendant Limited, and have likewise examined plaintiff's opposing papers and the accompanying affidavits of plaintiff, of Arthur Stark, Esq., counsel familiar with the facts of the case, of A. J. Barranco, Jr., Esq., counsel for plaintiff, and of Anthony Ricketts, Esq., partner in the law firm of Higgs and Johnson, Nassau, Bahamas.

 The principle of forum non conveniens is simply that a court may resist the imposition upon it of jurisdiction under certain circumstances even when it clearly has jurisdiction and venue is otherwise proper. See, e.g., Gulf Oil Corporation v. Gilbert, 230 U.S. 501, 507, 67 S. Ct. 839, 91 L. Ed. 1055 (1946).

 This Court first notes that the doctrine of forum non conveniens is a procedural one governed by federal rather than state law. Willis v. Weil Pump Co., 222 F.2d 261 (2d Cir. 1955); Ciprari v. Servicos Aereos Cruzeiro do Sul, S.A., 232 F.Supp. 433 (S.D.N.Y.1964); Shulman v. Compagnie Generale Transatlantique, 152 F.Supp. 833 (S.D.N.Y.1957); Ultra Sucro Co. v. Illinois Water Treatment Co., 146 F.Supp. 393 (S.D.N.Y.1956).

 The relevant factors for determining whether the doctrine of forum non conveniens is applicable have been enunciated and discussed by the Supreme Court, as follows:

 '* * * The doctrine leaves much to the discretion of the court to which plaintiff resorts * * *.

 If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the 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. There may also be questions as to the enforcability of a judgment if one is obtained. 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 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.' (Emphasis added; footnotes omitted.) Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1946).

 The latter landmark case declaring the inherent power of the federal courts to decline to exercise jurisdiction in appropriate cases was decided two years before the statutory codification of the doctrine of forum non conveniens in 28 U.S.C., sec. 1404(a). That codification, permitting transfer of actions properly brought to another district, did not, however, diminish the power of federal courts, recognized in Gilbert, to dismiss cases improvidently brought in a United States Court, e.g., cases that should have been brought in a foreign forum. Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633 (2d Cir.), cert. denied, 352 U.S. 871, 77 S. Ct. 96, 1 L. Ed. 2d 76, rehearing denied, 352 U.S. 913, 77 S. Ct. 144, 1 L. Ed. 2d 120 (1956). The principles and criteria articulated in Gilbert have continuing validity in cases, like the instant one, where the question of the applicability of the doctrine of forum non conveniens is raised and transfer to the appropriate forum under 28 U.S.C., sec. 1404(a), is not possible.

 In support of its motion to dismiss on the basis of forum non conveniens, defendant maintains that the Bahamas is the natural and most convenient forum for plaintiff's action, since the parties, the witnesses, and the evidence are all there, and Bahamian law is applicable. Defendant further cites De Sairigne v. Gould, 83 F.Supp. 270 (S.D.N.Y.), aff'd, 177 F.2d 515 (2d Cir. 1949), cert. denied, 339 U.S. 912, 70 S. Ct. 571, 94 L. Ed. 1338 (1950), maintaining that ...


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