in 1992, the sale of New Guinea Express would not have taken
Defendant timely filed the instant motion to dismiss for
forum non conveniens, contending that this action "belongs" in
Whether an action should be dismissed for forum non
conveniens involves a balancing of the private and public
interests outlined in Gulf Oil Corporation v. Gilbert (1947)
330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055. "Unless
[that] balance is strongly in favor of the defendant, the
plaintiff's choice of forum should rarely be disturbed." Id. at
508, 67 S.Ct. at 843. Although a plaintiff's citizenship should
not be accorded "talismanic significance," see Alcoa S.S. Co.
v. M/V Nordic Regent (2d Cir.) 654 F.2d 147, 154, cert. denied,
(1980) 449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116, it is clear
that "[t]he balance must be even stronger when the plaintiff is
an American citizen and the alternative forum is a foreign
one." Olympic Corporation v. Societe Generale (2d Cir. 1972)
462 F.2d 376, 378; see also American Special Risk Insurance Co.
v. Delta America Re Insur. Co. (S.D.N.Y. 1986) 634 F. Supp. 112,
Before turning to an analysis of the Gulf Oil factors, we
address defendant's contention that in this case the
plaintiff's choice of forum is not entitled to the greater
deference generally accorded the forum choice of a United
States citizen faced with the alternative of litigating in a
foreign country. In support of this contention, defendant
misplaces reliance on the following language from Judge Sweet's
opinion in Broadcasting Rights v. Societe du Tour (S.D.N.Y.
1987) 675 F. Supp. 1439, 1446-47: "[W]here the real party in
interest is a foreigner and the plaintiff is a United States
citizen solely by virtue of its place of incorporation, the
plaintiff's choice of forum will carry considerably less
weight." Plaintiff plainly is not a United States citizen
"solely" by virtue of its Delaware incorporation. As defendant
must concede, plaintiff operates out of offices located in
Roseland, New Jersey, and utilizes its parent's employees, who
are, for the most part, New Jersey residents.
Defendant further contends that plaintiff is but a "shell" of
its parent, Reefer, and, consequently, that Reefer's
citizenship should be imputed to it for the purpose of
forum non conveniens analysis. Even assuming the validity of
this contention, we cannot say that plaintiff's choice of forum
would be entitled to less deference. Although Reefer is
incorporated under Bermuda law, its principal place of business
is in Roseland, New Jersey, where its headquarters are, and
where the overwhelming majority of its employees are based.
Clearly, these contacts would defeat diversity jurisdiction
were Reefer to sue a New Jersey citizen in federal court. We
are not persuaded that even if plaintiff — like its parent —
had been incorporated in Bermuda it would not, for the purposes
of forum non conveniens analysis, be entitled to deference
similar to that of a corporation organized under the laws of
one of the United States.
Two other considerations weigh in favor of deferring to
plaintiff's choice of forum. First, plaintiff has chosen a
forum in which the defendant maintains a substantial presence.
Cf. Schertenleib v. Traum (2d Cir. 1978) 589 F.2d 1156, 1164
(fact that "plaintiff chose this forum and defendant resides
here . . . weighs heavily against dismissal"). As noted above,
defendant's branch in New York occupies three floors of a
midtown Manhattan office building. Second, on the record before
us, there is no indication that plaintiff's decision to file
its action here was guided by any motive other than to avail
itself of a convenient forum where its adversary would be
subject to jurisdiction.*fn3
Having concluded that plaintiff's forum choice is entitled to
deference, we turn now to our analysis of the Gilbert private
and public interest factors. As summarized by Judge Weinfeld in
Transunion Corp. v. Pepsico, Inc. (S.D.N.Y. 1986) 640 F. Supp. 1211,
1215 (quoting Fustok v. Banque Populaire Suisse (S.D.N.Y.
1982) 546 F. Supp. 506, 509 (Weinfeld, J.)), aff'd, (2d Cir.
1987) 811 F.2d 127:
The private interest factors include the location
of evidence and witnesses, the availability of
process to compel attendance of unwilling
witnesses, as well as other practical problems
that make trial of a case easy, expeditious, and
inexpensive. The public interest factors include
the difficulty which arises when a forum must
apply foreign choice of law rules and foreign law,
the administrative problems which follow when
litigation is added to existing heavy caseloads in
congested centers rather than being handled at its
origin, and the imposition of jury duty upon a
community which has no relation to the litigation.
The Private Interest Factors
Availability of witnesses and other evidence. Defendant
contends that "[a]ll of the important witnesses and evidence
needed for trial are located in Australia." Def. Mem. at 14.
These witnesses include four of defendant's employees and two
New Guinea Express officials, all of whom are beyond the
court's subpoena power. Their live testimony is required,
defendant asserts, because "the crux of this litigation is
whether the expiration date of the letter of credit diverged
from the intentions and agreement of Westpac and [New Guinea
Express]." Def. Mem. at 16.
Several considerations undercut these contentions. First, due
to its narrow perspective of the issues raised by this
litigation, defendant has failed fully to consider plaintiff's
need to call witnesses who reside in the New York area. For
example, plaintiff's estoppel claim is predicated upon an
alleged promise by defendant to issue a letter of credit for
the benefit of plaintiff in the form which either Reefer or
plaintiff had provided. Horn Aff. at ¶ 6. Accordingly,
plaintiff intends at the present time to call at least one of
its officers, as well as a New York attorney, one Andrew
Cosentino, who had been retained to effectuate the closing in
Australia of the transaction transferring ownership of New
Guinea Express. Both of these witnesses reside in the New York
area, and Cosentino no longer performs any services on behalf
of either plaintiff or Reefer.
Second, defendant's argument that its witnesses are beyond
this court's subpoena power overlooks the likelihood that it
exercises substantial control over four of its witnesses who
are its employees. Moreover, we are not persuaded that
defendant's efforts to gain the cooperation of New Guinea
Express in obtaining the live testimony of its employees
necessarily would be unavailing. Because of its agreement to
indemnify defendant, New Guinea Express' interest in preserving
its assets aligns it with defendant in this litigation. Even
were defendant unable to obtain New Guinea Express' employees'
live testimony at trial, there is nothing in the record to
suggest that plaintiff would not suffer an equal or greater
disadvantage were it required to try its case in Australia
without the benefit of Cosentino's live testimony.
Finally, with respect to the availability of documentary
evidence, we have not been made aware of any document or other
evidence in Australia that could not easily be transported to
this forum. See Manu International, S.A. v. Avon Products, Inc.
(2d Cir. 1981) 641 F.2d 62, 65.
Defendant's inability to implead New Guinea Express. Citing
Fitzgerald v. Texaco, Inc. (2d Cir. 1975) 521 F.2d 448, 453,
cert. denied, (1976) 423 U.S. 1052, 96 S.Ct. 781, 46 L.Ed.2d
641 defendant correctly asserts that the inability to implead a
third party is a factor that weighs in favor of dismissal.
Specifically, defendant contends that permitting this action to
proceed will render it vulnerable to potentially inconsistent
judgments. Its primary concern is that
the finder of fact in this action will determine that the
letter of credit did not expire in June 1986, but that the
finder of fact in Australia might render a contrary
determination in the context of defendant's indemnity claim
against New Guinea Express. We note, however, the absence in
the record of any indication that an Australian court
considering that claim would disregard the factual findings
made here. That possibility seems especially unlikely since it
appears that New Guinea Express's interest in establishing that
the letter of credit expired in 1986 will be adequately
represented by defendant's able counsel.
Public Interest Factors
Although the application of foreign law is clearly relevant,
it is "a chore federal courts must often perform." Manu
International, S.A. v. Avon Products, Inc. (2d Cir. 1981)
641 F.2d 62, 66. Defendant would have us conclude that this matter
raises "particularly thorny issues of foreign law." Def. Mem.
at p. 18. While we agree that Australian law likely will govern
plaintiff's claims, we observe that, at least at present, there
appear to be no far-reaching issues of Australian law raised by
this litigation. Indeed, the asserted claims raise relatively
simple factual issues concerning the parties' intent with
respect to the duration of the letter of credit, whether
defendant promised to issue a letter of credit that would
expire in 1992, and, if so, whether plaintiff reasonably relied
upon that promise. Accordingly, we perceive no basis for
concluding that the applicability of Australian law weighs
heavily in favor of dismissal.
Nor do we find compelling the considerations of court
congestion and burden on the jury. As noted above, this
two-party dispute focuses on a letter of credit and the
circumstances under which it was issued. At this stage of the
litigation, there appear to be no more than a handful of
potential witnesses. In short, we do not anticipate a lengthy
or complicated trial and therefore conclude that the trial of
this case would not impose an undue burden upon either the
court or the jury. Moreover, we do not believe that Australia
would have any particular interest in having its courts
adjudicate the simple factual issues here presented, the
resolution of which could not possibly have any substantial
effect on the general administration of its laws.
Defendant's motion to dismiss for forum non conveniens is