these witnesses would be unable or unwilling to attend proceedings in New York, or that most of the important witnesses are subject to subpoena by a court in Finland.
Viewing the construction site in Belarus would be inconvenient for either a Finnish court or this Court. But viewing the premises would not assist in resolving the important legal issues in this case. Moreover, only the state of construction at the time of demand, not at the time of trial, could have any bearing on whether New Hampshire was required to pay on the guarantees when Ministry of Defense requested payment in 1994.
New Hampshire argues that trying this case here would be inconvenient because there are proceedings pending in Finland in which the same issues may be decided. One of those proceedings, the adjudication of a contingent claim by Ministry of Defense against the estate of the bankrupt member of Arge Benoba, will not require the Finnish district court to adjudicate the merits of this case. That is, that court will not determine whether Ministry of Defense has a right to payment under the guarantees. The Finnish court has noted that a decision on the bankruptcy claim would "have no legal effect beyond the bankruptcy proceedings." Judgment of Helsinki District Court, Brooks Supp. Aff. Ex. A at 7. In addition, that proceeding has been stayed pending a decision by this Court. The other proceeding, an action by New Hampshire for a declaratory judgment against Ministry of Defense, was brought nearly two months after Ministry of Defense filed the complaint in this action and two days before New Hampshire filed its motion to dismiss. I am not persuaded that the existence of these foreign proceedings presents any "practical problem" in trying this case in New York, or that proceeding here would result in a great waste of resources.
There is no dispute that a judgment against New Hampshire could be enforced in New York. Ministry of Defense asserts that New Hampshire lacks assets in Finland sufficient to satisfy a judgment there, and that if it prevailed in an action in Finland, it would be required to bring a second proceeding against New Hampshire in the United States to enforce the judgment. Thus the fifth Gilbert factor tilts in favor of permitting this action to proceed.
None of the public interest Gilbert factors favors dismissal. The calendar of this court may be "congested," but the "temptation in a busy district like the Southern District of New York to transfer cases . . . must be resisted." See Manu Int'l, S.A. v. Avon Products, Inc., 641 F.2d 62, 65 (2d Cir. 1981) (citation and internal quotations marks omitted). New York citizens have an interest in this case because New Hampshire maintains its principal place of business here and may satisfy a possible judgment with funds located here, and because in a modern world characterized by a global economy, New Yorkers have a general interest in the economic and political conditions of the former Soviet Republics.
This case will require the application of foreign law. "But the need to apply foreign law is not in itself a reason to apply the doctrine of forum non conveniens, and we must guard against an excessive reluctance to undertake the task of deciding foreign law, a chore federal courts must often perform." See id., at 67-68 (citations and internal quotations marks omitted). Furthermore, because the issues are governed primarily by German law and Russian law or the law of the Commonwealth of Independent States, dismissal will not avoid the need for the court that hears this case to apply foreign law.
Ministry of Defense has selected the forum in which New Hampshire maintains its principal place of business. When a plaintiff chooses a defendant's home forum, "this weighs heavily against dismissal." See Schertenleib v. Traum, 589 F.2d 1156, 1164 (2d Cir. 1978) (affirming district court's dismissal on ground of forum non conveniens in "this rare case"); see also Manu, 641 F.2d at 67 (quoting Schertenleib). In the cases cited by defendant in which plaintiffs sued defendants in their home forums and motions to dismiss on the ground of forum non conveniens were granted, the relevant factors converged in the alternative forum to create a single center of gravity. See, e.g., Schertenleib (events took place in Switzerland, plaintiff and his alleged co-conspirator were incarcerated in Switzerland, all witnesses except defendant resided in Switzerland or other European countries, most documents were located in Switzerland and were in the French language, and Swiss law governed); In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195 (2d Cir.) (relevant events occurred in India, witnesses and sources of proof were almost entirely located in India, witnesses for the most part spoke Indian languages but not English, records were almost entirely in Indian languages, and Indian law governed claims), cert. denied, 484 U.S. 871, 108 S. Ct. 199, 98 L. Ed. 2d 150 (1987); Fassi v. LJN Toys, Ltd., 753 F. Supp. 486 (S.D.N.Y. 1990) (events occurred mainly in Italy, key witnesses resided in Italy or were available for trial in Italy, much of the relevant documentary evidence was located in Italy and was in the Italian language, and claims were governed by Italian law), aff'd, 948 F.2d 1276 (2d Cir. 1991); Fustok v. Banque Populaire Suisse, 546 F. Supp. 506 (S.D.N.Y. 1982) (alleged illegal acts occurred in Switzerland, Switzerland was central location of all material witnesses, relevant documents were located in Switzerland, and an action pending in Switzerland encompassed plaintiff's claims). Moreover, for the most part, the alternative forum in those cases was the home forum of the plaintiffs, unlike the alternative forum in this case. See Schertenleib; Union Carbide, at 202 ("All but a few of the 200,000 plaintiffs are Indian citizens located in India . . . ."); Fassi.
Finland does not represent a comparable center of gravity in this case. The relevant documents are written in German, not Finnish. German law applies, not Finnish. The parties are Russian and American, not Finnish. The succession of Ministry of Defense to the rights of the United Armed Forces, the construction of the housing project, and the alleged bribery of Russian generals underlying New Hampshire's claim of fraud all took place outside of Finland. Many potential witnesses are located in countries other than Finland. In light of these facts, it cannot be said that the relevant factors strongly favor trial in Finland.
New Hampshire has not made the required showing that upon consideration of the Gilbert factors, the balance of convenience tilts strongly in favor of dismissal. Accordingly, the motion to dismiss is denied.
Motion to Disqualify
Three days before the return date of this motion, New Hampshire moved to disqualify Jan Kuhlefelt as an expert witness and to strike his affidavit filed in opposition to New Hampshire's motion to dismiss. I have not relied on Kuhlefelt's affidavit in deciding the motion to dismiss.
Dated: New York, New York
November 10, 1995
MIRIAM GOLDMAN CEDARBAUM
United States District Judge
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