who previously moved for dismissal, are indispensable parties; and 2) forum non conveniens. By Memorandum Decision dated January 24, 1995, I denied the Allwood Defendants' motion to dismiss. Accordingly, ZYX's argument that the complaint should be dismissed because the Allwood Defendants are not present is rejected. ZYX's motion to dismiss on forum non conveniens grounds is denied.
A. Standards Applicable to Forum Non Conveniens Motions
Under the common law doctrine of forum non conveniens, a court with proper jurisdiction and venue over a matter may refrain from hearing the case if another significantly more appropriate forum exists. See Nationsbank of Florida v. Banco Exterior de Espana, 867 F. Supp. 167, 169 (S.D.N.Y. 1994). To determine whether a complaint should be dismissed on forum non conveniens grounds, I must consider two issues: 1) the availability of an alternate forum and 2) the balance of private and public interests weighed against the plaintiff's choice of forum. See Gulf Oil v. Gilbert, 330 U.S. 501, 506-07, 67 S. Ct. 839, 842, 91 L. Ed. 1055 (1947); see also Piper Aircraft Co. v. Reynolds, 454 U.S. 235, 241, 254 n. 22, 102 S. Ct. 252, 258, 265 n. 22, 70 L. Ed. 2d 419 (1981).
While the moving party bears the burden of showing that an alternative forum is clearly more appropriate, Oil Basins Ltd. v. Broken Hill Proprietary Co., 613 F. Supp. 483, 489 (S.D.N.Y. 1985), the decision to grant or deny the motion to dismiss is entirely within my discretion. Piper Aircraft, 454 U.S. at 257, 102 S. Ct. at 266.
B. Adequacy of Alternate Forum
Generally, an alternate forum will be considered adequate when the defendant is "amenable to process" there. See Gulf Oil, 330 U.S. at 506-07, 67 S. Ct. at 842; see also R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d 164, 167 (2d Cir. 1991), (citing Piper Aircraft v. Reynolds, 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1983)) ZYX maintains that Australia is an adequate alternate forum. The only support for this assertion, other than the fact that the Allwood Defendants are Australian citizens, is ZYX's equivocal suggestion that it "may" be subject to suit in Australia. (ZYX Mem. at 22). This suggestion is insufficient to establish the existence of an adequate alternate forum. Cf. Georgiadis v. First Boston Corp., 1994 WL 392229, *2 (S.D.N.Y. 1994) (district court considered England adequate alternate forum where defendant submitted affidavits from expert in English law affirming that defendant would be amenable to suit there).
C. Balance of Factors
Even assuming that Australia is an adequate alternate forum, ZYX still has the burden of showing that, notwithstanding the presumption accorded plaintiff's choice of forum, the balance of private and public interests requires dismissal. See Manu International S.A. v. Avon Products, 641 F.2d 62, 65 (2d Cir. 1981); Editorial Musical Latino Americana v. Mar International Records, Inc., 829 F. Supp. 62, 66 (S.D.N.Y. 1993). ZYX has not met this burden.
First, plaintiffs have chosen this forum and their choice must be given substantial deference. See Gulf Oil, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947); see also Editorial Musical Latino Americana, 829 F. Supp. at 66 (citing Lipton v. The Nature Co., 781 F. Supp. 1032, 1036 (S.D.N.Y. 1992)). Courts are particularly reluctant to disturb a plaintiff's choice of forum when the action involves, as here, an American plaintiff against a foreign defendant. See Nationsbank of Florida v. Banco Exterior de Espana, 867 F. Supp. 167, 171 (S.D.N.Y. 1994) (citing cases).
Second, the balance of public and private factors weighs in favor of plaintiffs. With respect to the public factors, the interest in keeping localized controversies at home clearly supports keeping this case with this Court. The central issues to this case concern alleged violations of United States trademark and copyright laws, not, as ZYX asserts, foreign contract law.
In addition, the disputed compact discs are being sold in New York. Furthermore, the need to analyze foreign law, if at all, is slight, and at any rate, is not dispositive of a motion to dismiss. R. Maganlal, 942 F.2d at 169.
The private factors also weigh in favor of denying the motion to dismiss. First, ZYX Music Distribution Ltd., the distribution arm of ZYX GmbH, is a New York corporation with its principal place of business in West Babylon, New York. Accordingly, the ZYX Defendants cannot claim that New York is an inconvenient forum. See Rolls Royce Motors, Inc. v. Charles Schmitt & Co., 657 F. Supp. 1040, 1061 (S.D.N.Y. 1987). Since ZYX Music Distribution Ltd. is a New York corporation, the enforcement of a judgment against the ZYX Defendants is not a concern.
Second, while many of the witnesses are located abroad, many are located in New York, as both BMG and ZYX Music Distribution Ltd. are New York entities. Furthermore, although I am somewhat concerned about the lack of compulsory process over non-party witnesses, this concern is obviated by the fact that, as evidenced by the numerous non-party witnesses who testified at the preliminary injunction hearing, the foreign witnesses are willing to come to the United States to testify at plaintiffs' expense. See Flynn v. General Motors, Inc., 141 F.R.D. 5 (E.D.N.Y. 1992) (forum non conveniens motion denied where defendant did not show that foreign witnesses were "unwilling to testify in the United States"); see also Overseas Programming v. Cinematographische Commerz-Anstalt, 684 F.2d 232, 235 (2d Cir. 1985) (difficulties in compelling foreign witnesses to testify may be resolved by use of deposition testimony or letters rogatory) Finally, ZYX's argument that key documents relating to this case are with the Allwood Defendants in Australia does not require the dismissal of this case where the parties have exchanged copies of those documents and Allwood claims the originals are lost.
The ZYX Defendants have failed to show that an adequate alternate forum exists or that the balance of factors is sufficient to overcome plaintiffs' choice of forum. Accordingly, the motion to dismiss is denied.
Plaintiffs have demonstrated both irreparable harm and a likelihood of success on the merits with respect to their trademark infringement, trademark dilution, unfair competition and common law copyright infringement claims. Accordingly, plaintiffs' motion for a preliminary injunction is granted. Defendants are hereby enjoined from 1) manufacturing, copying, distributing or selling any Melodiya classical music sound recordings; and 2) using, reproducing, copying or displaying on any product the designations Melodiya, Melodiya in Cyrillic letters or Melodiya's trademark M design and logo. Counsel for plaintiffs are directed to submit an order and injunction consistent with this opinion within seven days hereof in accordance with the procedures set forth in Civil Rule 8. The order must provide for the issuance of a bond by plaintiffs in an amount to be agreed upon by the parties. If the parties cannot agree on an amount, they shall submit letters to the Court within one week hereof setting forth their positions on the amount of the bond, and I will decide the amount to be posted.
ZYX's motion to dismiss based on forum non conveniens is denied.
Dated: New York, New York
March 16, 1995
Amended: New York, New York
April 12, 1995
United States District Judge