The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
Defendant Citibank, N.A. ("Citibank") moves to dismiss plaintiffs' Reza Rastegar Esfahani and Morteza Rastegar Djavaheri (the "Rastegars") complaint on the basis of forum non conveniens. For the reasons that follow, defendant's motion is denied.
The relevant allegations of plaintiffs' action are as follows. The Rastegars owned Calcimine Company, Ltd. ("Calcimine"), an Iranian mining company, until the summer of 1979 when it was expropriated by the Khomeini government. Prior to that, in 1974 and 1975, the Rastegars engaged in two transactions in which $10 million was loaned to Calcimine by either Citibank Paris or the Rastegars. The Rastegars deposited $10 million in Citibank Paris and $10 million was lent to Calcimine.
The purpose of these two $5 million loans was to provide financing for a projected expansion and modernization of Calcimine's Iranian operations, including the purchase of French mining equipment. Citibank Paris and the Rastegars signed "fiduciary loan agreements" to facilitate this transaction. The agreements contained express forum-selection clauses designating Paris as the situs for initiation of suits arising out of disputes concerning the agreements. Personal guarantees of repayment by Calcimine also were executed by the Rastegars on both $5 million loans. Later in 1975, the first $5 million loan was assigned from Citibank Paris to the Rastegars (a "Cession de Creances"). The Cession de Creances also contained a forum-selection clause requiring that any suit be brought in Paris.
Interest payments on the 1974 loan were made on schedule from October 1, 1974 through August 31, 1978, and on the 1975 loan from September 9, 1975 through May 31, 1978. Total interest payments on the two loans of $2,338,000 were paid into the Rastegars account at Citibank Paris. From these interest payments, Citibank Paris deducted $94,000 in commissions.
From May 1978 to June 1982 Citibank Paris asserts that it repeatedly requested that Calcimine make its scheduled payments on the two loans. Initially, according to Citibank Paris, the Rastegars requested and obtained on behalf of Calcimine, a rescheduling of the debt. On previous reschedulings the Rastegars had signed letters discharging Citibank Paris from any potential liability resulting from the discharges.
In the summer of 1979 the Rastegars' Calcimine shares were taken over by the Iranian government. On January 19, 1981, Iran and the United States signed the "Algiers Accords" setting forth the conditions for the release of the American hostages and the settlement of claims between the two countries. One agreement, the "Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran," provided for the submission of all unsettled claims between Americans and Iran to an arbitral tribunal at the Hauge.
As alleged in plaintiffs' complaint, during the months that followed Citibank repeatedly promised that it would attempt to collect or settle with Iran the $10 million loans to Calcimine. Plaintiff Reza Rastegar Esfahani's affidavit relates that he was told by Citibank Paris that Citibank in New York would be handling their claims as part of the total package of claims that Citibank held against Iran. Therefore, according to Esfahani, he and his brother had no further contact with Citibank Paris concerning the Calcimine loans; they were told that all collection efforts were being directed from New York.
In September 1981, Esfahani states that he met with an official of Citibank in New York who stated that Citibank was negotiating settlement of all of Citibank's claims including the Calcimine loans, and that the Rastegars "should do nothing to disturb the negotiations. . . .In the future [Esfahani] should contact Mr. West [of Citibank] directly in New York whenever [he] wanted information about Citibank's progress in its efforts to collect the loans." Esfahani Affidavit at 13. Further meetings were held in New York in August 1982, and in January and April 1983, between the Rastegars or their children and Citibank officials. Numerous telephone discussions also were had with New York Citibank officials. Throughout these meetings and conversations plaintiffs' allege that Citibank reassured the Rastegars that Citibank would attempt to settle the Calcimine loans as part of Citibank's world-wide claims against Iran. Citibank also asked and the Rastegars agreed to pay a pro rata share of Citibank's legal expenses in negotiating the settlement.
At a second April meeting in 1983, Citibank informed Esfahani's son that Iran had refused to pay any of the Calcimine loans, but that Iran had made an overall settlement of all of Citibank's other non-syndicated loan claims. Citibank also stated that it had given Iran an indemnification letter holding Iran harmless in the event the plaintiffs' family sued Iran or Calcimine for nonpayment of the $10 million loans.
Plaintiffs thereafter brought this action for breach of fiduciary duty in the Southern District of New York seeking a pro rata share of the settlement proceeds received by Citibank. Citibank made this motion to dismiss.
The contours of the doctrine of forum non conveniens were discussed extensively by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). In Gulf Oil, the Court set forth various public and private interests potentially relevant to a forum non conveniens motion.See generally id. at 508-509. The list was not meant to be exhaustive. See id. In support of its motion, defendant cites the following private interests noted in Gulf Oil: (1) ease of access to sources of proof, (2) availability of compulsory process for witnesses, ...