of the contacts reveals that none of the contacts, either individually or taken as a whole, establishes to any degree that either Defendant is "engaged in such a continuous and systematic course of 'doing business' [in New York] as to warrant a finding of its 'presence' in this jurisdiction." See, Landoil, supra, at 1043; Frummer, supra, at 853. Without such a finding of "doing business" in New York, personal jurisdiction under CPLR § 301 cannot be sustained.
Plaintiffs argue that allowing Defendants' corporate structure to lead to dismissal of this action on Jurisdictional grounds is inequitable, and that Plaintiffs, badly hurt in an accident, should not lose their preferred avenue of redress for their injuries because of the corporate positioning of Defendants. Although the court's analysis of Defendants' contacts in New York leads to a seemingly harsh result, the court notes that Plaintiffs could have brought this action in New Jersey, Delaware, Italy, or Ontario
where there would not appear to have been any barriers to personal jurisdiction over at least one or possibly both Defendants.
In fact, Defendants offered at the outset to litigate this matter in Ontario, waiving any jurisdictional and/or statute of limitations objections, but were turned down by Plaintiffs. Had such a jurisdictionally proper forum been initially selected, it is possible that a forum non conveniens motion brought by Plaintiffs could have resulted in the case being tried in this locale, if Defendants consented to New York jurisdiction. See, Gulf Oil v. Gilbert, 330 U.S. 501, 506-07 (1947) (doctrine of forum non conveniens presupposes at least two forums in which the defendant is amenable to process, either by being subject to process or consenting to process in the foreign forum). It is unfortunate that Plaintiffs chose to rely exclusively on the New York forum, but, in cases of this kind, the jurisdictional law in New York is well settled, and there is no basis on which to find that either Defendant is doing business in this jurisdiction. As a diversity court, we must respect New York jurisdictional principles, and there is no reason, on this record, to conclude that New York courts would hold otherwise.
As to Defendants' motion for dismissal based on the doctrine of forum non conveniens, based on my recommendation in this case, this motion should be moot. However, the court notes that, even if the motion was not moot, it would not recommend dismissal of this lawsuit on the ground of forum non conveniens in favor of litigating this action in Ontario.
A district court has broad discretion in deciding whether to dismiss an action on the grounds of forum non conveniens. See, Piper Aircraft v. Reyno, 454 U.S. 235, 257 (1981); R. Maganlal & Co. v. M.G. Chemical Company, Inc., 942 F.2d 164 (2d Cir. 1991). To prevail on a motion to dismiss based on forum non conveniens, a defendant must demonstrate that an adequate alternative forum exists and that, considering relevant private and public interest factors, the balance of convenience tilts in favor of a trial in a foreign forum. See, Gilbert, supra, at 508-09 (1947). Ordinarily a strong presumption exists in favor of the plaintiff's choice of forum unless relevant private and public interest factors weigh heavily in favor of a trial in the alternative forum. See, Piper Aircraft, supra, at 255; R. Maganlal, supra, at 167-68. Private interest factors include "the ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining willing, witnesses; . . . and all other practical problems that make trial of a case easy, expeditious and inexpensive." Gilbert, supra, at 508. Public interest factors include "administrative difficulties stemming from court congestion; the interest in having 'localized controversies decided at home'; and the interest in having issues of foreign law decided by a foreign tribunal." Gilbert, supra, at 508-09.
In this case, the accident took place fortuitously in Ontario, Canada. Neither plaintiff is a resident of Canada. Additionally, Plaintiffs represent that in Ontario there is no cause of action for strict products liability, and there is a $ 180,000 limit on non-pecuniary damages. Following the accident, Plaintiffs were transported back into New York where they were hospitalized in Buffalo, New York area hospitals and treated by Buffalo doctors. The vehicle at issue in this case was brought back to Buffalo and remains in storage. Defendants argue that the investigating officer's report, the fire report, and the report by towing personnal is in Ontario and not subject to process. Further, Defendants argue that Ontario law should apply to this action as, unless extraordinary circumstances exist, the law of the place of the tort is the general rule in New York, (see, e.g., Schultz v. Boy Scouts of America, 480 N.E.2d 679, 684 (N.Y. 1985)), and therefore, an Ontario court is better suited to apply Ontario law.
This court concludes that Defendants have not shown that the balance of convenience sufficiently favors trial in the Ontario forum to overcome the presumption in favor of Plaintiff's choice of forum. The need to apply foreign law is not alone sufficient to dismiss under the doctrine of forum non conveniens. See, R. Maganlal, supra, at 169. The other arguments of counsel, i.e., that certain documents exist which are not subject to process in Ontario, cannot overcome the fact that many of the witnesses to be called in this litigation reside in New York, Plaintiffs' full course of medical treatment took place in New York, the vehicle is Stored in New York, and Plaintiff Kowalick resides in New York. Further, Plaintiffs represented at oral argument that they were in possession of the documents which Defendants state that they are unable to obtain and Plaintiffs volunteered to forward these documents to Defendants upon request. These factors cause the court to conclude that Defendants would not be successful on a motion to dismiss on the ground of forum non conveniens.
The fact that the court would recommend denial of Defendants' forum non conveniens motion in no way undercuts its conclusions as to the lack of personal jurisdiction over Defendants discussed above as the considerations of convenience and choice of law are irrelevant to the question of personal jurisdiction. See, Hanson v. Denckla, supra, at 254 ("[a state] does not acquire (personal) jurisdiction by being the 'center of gravity' of the controversy, or the most convenient location for litigation . . . the issue is personal jurisdiction, not choice of law"); Saraceno, supra, at 72 ("while we recognize that a New York plaintiff has a strong interest in bringing suit in this [New York] forum, we must balance this interest against defendant's right to be free of the expense and annoyance of protracted discovery if, in fact, it is not subject to this court's jurisdiction").
Based on the above discussion, I recommend that Defendant Fiat Auto S.p.A. and FAUSA's motion to dismiss for lack of personal jurisdiction be GRANTED. Defendants' alternative motion for dismissal on the ground of forum non conveniens, based on my recommendation, is therefore moot. However, if Judge Skretny should, upon de novo review, conclude otherwise than as recommended on the question of jurisdiction, it is further recommended that Defendants' motion of dismissal on forum non conveniens grounds be DENIED.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: June 19, 1992
Buffalo, New York
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of civil Procedure and Local Rule 30(a).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the counsel for Plaintiffs and Defendants.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: June 19, 1992
Buffalo, New York