In determining whether an action should be dismissed under
the doctrine of forum non conveniens, a court must weigh the
private and public factors enumerated by the Supreme Court in
Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055
(1947). The private factors to be taken into account are: (1)
the relative ease of access to sources of proof; (2) the
availability of compulsory process for attendance of unwilling
witnesses; (3) the cost of obtaining attendance of willing
witnesses; (4) the possibility of viewing the premises, if
appropriate; (5) the enforceability of a judgment if one is
obtained; and (6) all other practical considerations that make
trial of a case easy, expeditious, and inexpensive. Id. at 508,
67 S.Ct. at 843. The public factors enumerated in Gulf Oil v.
Gilbert include the remoteness of the forum from the situs of
the event and the forum court's need to rely upon foreign law.
Id. at 508-09, 67 S.Ct. at 843; Overseas Nat'l Airways, Inc. v.
Cargolux Airlines Int'l, 712 F.2d 11, 14 (2d Cir. 1983).
A citizen or resident's choice of forum deserves more
deference than that of a foreign plaintiff. Piper Aircraft Co.
v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 265-266, 70
L.Ed.2d 419 (1981). However, dismissal is not automatically
barred when a plaintiff files suit in his home forum. Rather,
dismissal is proper if the weighing of the private and public
factors suggests that trial in the chosen forum would be
unnecessarily burdensome for the defendant or the court. Id. at
256 n. 23, 102 S.Ct. at 266 n. 23. See Borden, Inc. v. Meiji
Milk Products Co., Ltd., 919 F.2d 822 (2d Cir. 1990) (affirming
dismissal on the ground of forum non conveniens even though
plaintiff was an American corporation authorized to do business
in New York); Overseas Nat'l Airways, Inc. v. Cargolux Airlines
Int'l, 712 F.2d 11 (2d Cir. 1983) (same); Calavo Growers of
California v. Generali Belgium, 632 F.2d 963 (2d Cir. 1980)
As for the private factors, almost all documents so far
requested are to be found in Britain. Except for plaintiff
Vidockler, all other potential witnesses who can testify as to
the existence or nonexistence of various agreements and actions
alleged by plaintiff are citizens and domiciliaries of Great
Britain. All of the directors and officers of BCG, with the
exception of one, are domiciled in Great Britain. The majority
of shareholders in BCG are British subjects. Thus, most every
possible witness in the instant action is a British subject and
beyond the jurisdiction of this court. Besides the difficulty
of obtaining the attendance of unwilling witnesses from Great
Britain, the cost and disruption of obtaining the attendance of
willing witnesses for discovery and for trial would be
considerable. Further, any injunction seating plaintiff
Vidockler on the board of directors of BCG, which sits in Great
Britain, would not be enforceable. Moreover, any damages
awarded to plaintiffs would have to be remitted to legal
proceedings in the British courts because none of the
defendants have assets in New York upon which a money judgment
could be obtained.
As for the public factors, New York has little interest in
the instant action which involves the internal affairs of a
Scottish corporation. Not only does New York have little
interest in this controversy, but Great Britain has a
substantial interest in determining the legal rights to seats
on the board of directors of a Scottish corporation. Because
the instant action involves a number of issues concerning the
internal affairs of a foreign corporation and because "the law
of the state of incorporation normally determines issues
relating to the internal affairs of a corporation," First
National City Bank v. Banco Para El Comercio Exterior De Cuba,
462 U.S. 611, 621, 103 S.Ct. 2591, 2597, 77 L.Ed.2d 46 (1983),
British law will be applicable to a number of critical issues
in the instant action.
In sum, most of the documents are in Great Britain, almost
every possible witness is a British subject and beyond the
jurisdiction of this Court, any judgment of this Court would
either not be enforceable in Great Britain or would require
remittance to the British courts, the instant action involves
a seat on the board of directors of a Scottish corporation
which sits in Great Britain, and British law will apply to
critical issues in the litigation. The private and public
factors therefore weigh heavily in favor of dismissing this
action on the ground of forum non conveniens. Accordingly,
defendants' motion to dismiss plaintiffs' claims for an
injunction and damages on the grounds of forum non conveniens
is granted subject to defendants' agreement to continue the
instant action in Great Britain.
The only issue which remains is plaintiffs' claim against
defendants for contempt of the 1966 settlement agreement.
Federal Rule of Civil Procedure 56 provides that summary
judgment is appropriate when "there is no genuine issue as to
any material fact" and the moving party "is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). When the
terms of an agreement are clear and unambiguous, a court will
not look beyond the "four corners" of a document to determine
what the parties meant. Bellefonte Re Ins. Co. v. Argonaut Ins.
Co., 581 F. Supp. 241, 243 (S.D.N.Y. 1984). When the language of
an agreement is unambiguous and reasonable people could not
differ on its meaning, a court may decide the proper
interpretation of the language in the agreement. American Home
Assurance Co. v. Baltimore Gas & Elec., 845 F.2d 48, 51 (2d
Plaintiffs claim defendants are in contempt of the 1966
settlement agreement which settled a derivative action
commenced in this Court by plaintiffs in the instant action
against CAP. The settlement agreement reads: "So long as SAI
shall own stock in [CAP], [CAP] agrees to appoint an individual
nominated by SAI and acceptable to [CAP] to serve as one of its
Executive Directors." Based on this provision, plaintiffs claim
that BCG is in contempt of the court order which approved the
1966 settlement agreement.
Plaintiffs' claim is baseless, however, because the language
of the settlement agreement upon which plaintiffs rely does not
give plaintiffs a seat on the board of directors of BCG.
Rather, the clear and unambiguous language of the agreement
gives plaintiffs a seat on the board of CAP. Although CAP is a
subsidiary of BCG, CAP is, and was, a separate and distinct
corporate entity from BCG. No language in the settlement
agreement purports to give plaintiffs a seat on the board of
BCG. Defendants therefore can not be found in contempt of the
1966 settlement agreement for failure to give plaintiffs a seat
on the board of directors of BCG. Thus, there is no genuine
issue of material fact as to plaintiffs' contempt claim and
defendants are therefore entitled to judgment on the claim as
a matter of law. Accordingly, defendants' motion to dismiss
plaintiffs' claim that defendants are in contempt of the 1966
settlement agreement is granted.
Plaintiffs' motion pursuant to Rule 19(a)(1) and Rule 15(a)
and (d) is denied. Defendants' motion to dismiss plaintiffs'
contempt claim is granted and defendants motion to dismiss the
remaining claims in the instant action under the doctrine of
forum non conveniens is granted subject to defendants'
agreement to continue the instant action in Great Britain.