denied a forum non conveniens motion because, among other reasons, the alternative forum prohibited contingent-fee arrangements and the plaintiff could not pre-pay a retainer. The plaintiff had no source of income, had been unable to work since the accident over which he sued, and was living with his brother, who supported him. Id. at 120.
The difficulties Murray may encounter in litigating in England are not sufficiently severe to alter the private interest conclusion. Because nearly all of the prospective witnesses and physical and documentary evidence are located in England, the private interest factors strongly favor dismissal. See Blanco v. Banco Industrial de Venezuela, 997 F.2d 974, 982 (2nd Cir. 1993) (private interest factors strongly favor dismissal when most witnesses and physical and documentary evidence are located in other forum).
3. Public Interest Factors
Public interest factors relevant to the forum non conveniens determination include court congestion, the local interest in having localized controversies decided at home, the unfairness of imposing the burden of jury service on citizens in a forum unrelated to the dispute, and the appropriateness of trying a case in a forum which is familiar with the law to be applied. Gilbert, 330 U.S. at 508-09, 67 S. Ct. at 843. Because neither party has discussed the relative congestion of the American and English courts, that factor does not affect the inquiry.
a. Relationship of the litigation to the forum
Defendants claim that English courts have the primary interest in resolving the case because both the BBC and Murray are citizens of England and because the events giving rise to the litigation-with the exception of the incipient infringement in the United States--occurred in England. Defendants also contend that considerations of comity dictate that a citizen of England should not be allowed to haul the BBC, a taxpayer-funded entity, into court in the United States.
Murray argues that the United States has two interests in the litigation: an interest in enforcing its laws and an interest in preventing the inefficiency which would result from dismissal of this case. According to Murray, if Lionheart licenses Mr. Blobby in the United States, each licensee will be an infringer of Murray's copyright. If this case is dismissed, Murray will be forced to bring suit in the United States against each licensee, giving rise to duplicative litigation.
The United States and England do have an interest in ensuring compliance with their laws. See London Film Productions, 580 F. Supp. at 49. However, those interests are somewhat weakened by the fact that whether an English or American court hears the case, it will apply the law of the country of the alleged infringement.
The citizenship of the parties gives England a greater interest in the litigation. Both Murray and the BBC are citizens of England, and Lionheart, while incorporated in Delaware, is a wholly-owned subsidiary of the BBC. Thus, the dispute is essentially one between two English citizens. The BBC's status as a taxpayer-funded entity also provides England with a strong interest in the outcome of the case. Moreover, an injunction issued by an English court will be enforceable in the United States under the doctrine of comity, provided the English proceedings were orderly, fair and consistent with United States policy. See Bandes v. Harlow & Jones, Inc., 852 F.2d 661, 666 (2nd Cir. 1988); Pravin Banker Assoc., Ltd. v. Banco Popular del Peru, 165 Bankr. 379, 384 (S.D.N.Y. 1994).
b. Need to apply foreign law
Although the need to apply foreign law is not in itself reason to dismiss a case for forum non conveniens, Manu Int'l v. Avon Products, 641 F.2d 62, 67 (2nd Cir. 1981), the need to apply foreign law to this case militates in favor of dismissal. English law applies to two of Murray's claims. His claim for copyright infringement under English law requires application of English intellectual property law, which differs from American intellectual property law in several respects. (See Baldwin Aff. PP 7, 9-11; Defendants' Reply Memorandum, at 40-42.) The purchase order provides that it is to be construed in accordance with the laws of England, and a New York court would uphold that provision absent a violation of a fundamental state policy. See Cargill, Inc. v. Charles Kowsky Resources, Inc., 949 F.2d 51, 55 (2nd Cir. 1991).
Defendants' motion is granted, on the condition that: 1) Lionheart consent to jurisdiction in England and 2) defendants waive any statute of limitations defense they are entitled to assert in England.
Dated: New York, New York
April 3, 1995
LOUIS L. STANTON
U. S. D. J.