clause of section 1608(b)(2) for all countries, such as Germany, that have opted out of the service by mail provision of the Hague Convention because service pursuant to 28 U.S.C. § 1608(b)(3) will invariably be less expensive than compliance with the Hague Convention. Moreover, such an interpretation flies in the face of the plain words of the statute that service cannot be made pursuant to section 1608(b)(3) unless service "cannot be made under paragraphs (1) or (2)." 28 U.S.C. § 1608(b)(3), see Richmark Corp., 937 F.2d at 1448; Lippus v. Dahlgren Mfg. Co., 644 F. Supp. 1473, 1478 (E.D.N.Y. 1986). Thus, service of the amended complaint did not comply with the requirements of the FSIA.
Bybee next argues that defendants waived any challenge to the service of process by virtue of Dr. Raeder's letter in response to her serving the original complaint. Dr. Raeder's letter, however, could not waive defendants' objections to the service of the amended complaint because the letter does not constitute an answer to either complaint and it was mailed prior to the service of the amended complaint. Moreover, defendants' motion contesting the sufficiency of service was filed timely pursuant to Fed. R. Civ. P. 12(h)(1). See, e.g., Santos v. State Farm Fire and Casualty Co., 902 F.2d 1092, 1095 (2d Cir. 1990). Thus, defendants did not waive their right to challenge the service of process and the motion is timely.
As noted above, Bybee has cross-moved for leave to re-serve the amended complaint. Although such a request would normally be granted, see, e.g., First City v. Rafidain Bank, No. 90 Civ. 7360, 1992 U.S. Dist. LEXIS 15235, 1992 WL 296434, at *1 (S.D.N.Y. Oct. 6, 1992), it would be a misuse of judicial resources -- and a waste of the resources of the parties -- to permit Bybee to effectuate proper service only to have the Court dismiss her case at a later date on a renewed motion to dismiss the amended complaint on the grounds of forum non conveniens. See Alberti v. Empresa Nicaraguense De La Carne, 705 F.2d 250, 253 (7th Cir. 1983). More importantly, because the amended complaint was not properly served, the original complaint remains in effect. See International Controls Corp. v. Vesco, 556 F.2d 665, 668-69 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S. Ct. 730, 54 L. Ed. 2d 758 (1978). Therefore, defendants' motion to dismiss for lack of personal jurisdiction due to improper service of the amended complaint must be denied. Thus, this Court will now address defendants' argument that the amended complaint should be dismissed pursuant to the doctrine of forum non conveniens.
IV. Forum Non Conveniens
Defendants contend that the amended complaint should be dismissed pursuant to the doctrine of forum non conveniens. In deciding such an application, the Court has considerable discretion. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S. Ct. 252, 266, 70 L. Ed. 2d 419 (1981); see also Gordon v. Long Bay (1980) Ltd., No. 94 Civ. 2141, 1995 U.S. Dist. LEXIS 11721, 1995 WL 489474, at *3 (S.D.N.Y. Aug. 16, 1995). Initially, the Court must determine whether a suitable alternative forum exists. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 67 S. Ct. 839, 842, 91 L. Ed. 1055 (1947); Transunion Corp. v. Pepsico, Inc., 640 F. Supp. 1211, 1215 (S.D.N.Y. 1986), aff'd, 811 F.2d 127 (2d Cir. 1987). Assuming such an alternative forum exists, the decision then requires a balancing of the relevant private and public interest factors in order "to determine where the trial will be most convenient and will serve the ends of justice." R. Maganlal & Co. v. M.G. Chemical Co., Inc., 942 F.2d 164, 167 (2d Cir. 1991); see also Gulf Oil Corp., 330 U.S. at 508-09, 67 S. Ct. at 843; Allstate Life Ins. Co. v. Linter Group Ltd., 994 F.2d 996, 1001 (2d Cir.), cert. denied, 114 S. Ct. 386, 126 L. Ed. 2d 334 (1993). In order to prevail, defendants must show that the balance is strongly in favor of litigating in Germany in order to overcome the substantial weight accorded plaintiff's choice of forum. R. Maganlal & Co., 942 F.2d at 167-68; Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 151 (2d Cir.), cert. denied, 449 U.S. 890, 101 S. Ct. 248, 66 L. Ed. 2d 116 (1980).
In Transunion Corp., an opinion by Judge Edward Weinfeld characterized by the Second Circuit as "typically careful and complete," see 811 F.2d at 129, Judge Weinfeld summarized the relevant public and private factors -- originally set forth in Gulf Oil Corp., 330 U.S. at 508-09, 67 S. Ct. at 843, and Koster v. Lumbermens Mut. Casualty Co., 330 U.S. 518, 524, 67 S. Ct. 828, 831, 91 L. Ed. 1067 (1947) -- as follows:
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. In addition, the court must evaluate the enforceability of possible judgment and the relative advantages and obstacles to fair trial.