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WAME AGYENKWA v. AMC

November 20, 1985

KWAME AGYENKWA, Plaintiff, against AMERICAN MOTORS CORP. and SPEED AUTO SALES, INC., Defendants


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

This is a diversity action in which plaintiff seeks to recover for personal injuries sustained in a single vehicle accident. Defendant American Motors Corp. ("AMC") is the manufacturer of the vehicle -- an AMC Jeep CJ7 -- that plaintiff was driving at the time of the crash. Defendant Speed Auto Sales, Inc. ("Speed") is the distributor from whom plaintiff purchased the vehicle. Both defendants have moved to dismiss the complaint on the ground of forum non conveniens. For the reasons stated below, the motion is granted.

 Facts

 On December 4, 1981, the plaintiff purchased a 1982 AMC Jeep CJ7 from defendant Speed and arranged for Speed to ship the vehicle to plaintiff's residence in Accra, Ghana. Plaintiff alleges that the vehicle arrived toward the end of March, 1982, and that he delivered it to the local AMC dealer for a "routine service check-up" (Complaint P 8). Plaintiff picked up the vehicle on April 2, 1982.

 The accident occurred the next day as plaintiff was driving near North Accra, Ghana. Plaintiff swerved to avoid some potholes in the road and heard an "unusual noise" under the vehicle (Complaint P 10). He alleges that the vehicle began turning "in a zig zag manner" and that he could not control it. When the vehicle finally flipped over into a ditch, plaintiff was thrown through the windshield and sustained serious injuries. In a complaint sounding in negligence, breach of warranty and perhaps strict liability, he seeks to recover for his personal injuries and medical expenses, and for business losses that he alleges are a result of the accident.

 Defendant AMC is a Maryland corporation with its principal place of business in Southfield, Michigan. It alleges that the vehicle in question was manufactured in Toledo, Ohio. Defendant Speed is a New York corporation with its principal place of business in Brooklyn, New York. Plaintiff, a resident of Ghana, premises jurisdiction in this Court on diversity of citizenship, 28 U.S.C. ยง 1332. Defendants do not contest jurisdiction, *fn1" but argue that this Court should dismiss the complaint on the ground that Ghana provides a more convenient forum for this litigation.

 Discussion

 The doctrine of forum non conveniens allows a court to "resist imposition upon its jurisdiction" even when jurisdiction and venue are technically proper. *fn2" Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). The primary consideration is whether the convenience of the parties and the ends of justice would be served by dismissing the case. *fn3" Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 527, 91 L. Ed. 1067, 67 S. Ct. 828 (1947). Although the motion is addressed to the discretion of the district court, Piper Aircraft v. Reyno, 454 U.S. 235, 257, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981); Overseas Nat'l Airways, Inc. v. Cargolux Airlines Int'l, 712 F.2d 11, 14 (2d Cir. 1983), the Supreme Court has described the appropriate inquiry.

 First, "the court must determine whether there exists an alternative forum." *fn4" Piper Aircraft Co. v. Reyno, supra, 454 U.S. at 254 n.22. If this requirement is met, the public and private interests at stake are balanced, as outlined in Gulf Oil Corp. v. Gilbert, supra. Gilbert also instructs that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Id. at 508. The Court has subsequently made clear, however, that the choice of a foreign plaintiff is entitled to less deference. See Piper Aircraft v. Reyno, supra, 454 U.S. at 255-56 ("When the home forum has been chosen, it is reasonable to assume that the choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable."). Thus, although there is still a presumption in favor of the plaintiff's selection of this forum, the defendant's burden of showing inconvenience sufficient to justify dismissal is less stringent than it would be if the plaintiff were a citizen. With that in mind, I shall address each part of the test in turn.

 A. Availability of an Alternative Forum

 Defendants argue that the courts of Ghana provide a suitable alternative forum for this case. The plaintiff, however, points to several factors, both legal and practical, that he says militate against litigating in Ghana.

 Plaintiff's first concern is that he may not possess jurisdiction over the defendants in Ghana. In addition, plaintiff fears that Ghana's three-year statute of limitations for personal injury actions will bar his suit. In response, both defendants have agreed to waive any jurisdictional and statute of limitations defenses should this case be litigated in Ghana.

 The plaintiff contends, however, that this does not solve the problem, arguing that the Ghanaian Court might refuse to exercise jurisdiction over the case despite the concessions of the defendants. The parties' experts differ on this point. *fn5" Thus, in order to protect against the possibility that the court in Ghana may refuse to hear this case, the dismissal will be conditioned ...


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