L. Ed. 2d 89 (1983), and potential litigants must be encouraged to seek to avoid litigation rather than to adopt a "sue first, talk later" philosophy.
Hanson and Lowe argue that the special circumstances exception is not applicable and that this action should be permitted to proceed because New York is the only convenient forum for trial of this dispute.
This contention is rejected. Specifically, Hanson and Lowe contend that the files and witnesses relating to production of the commercial are located either in New York or in Europe, as the commercial was created in New York and filmed in Ireland under the direction of Lowe-New York and Gerard DeThames Films, a London-based production company, and editing was performed in London and New York. For example, Lowe's Creative Director, Copywriter, Art Director, and Producer are all based in New York. These witnesses are expected to testify concerning, inter alia, the conception, creation, and production of the commercial. Thus, the evidence regarding copying and scienter is likely to come from New York-based witnesses.
Although Hanson and Lowe do have significant ties to New York, MGM and Danjaq have ties to California that are also likely to be significant to the litigation of this dispute. For example, the evidence regarding ownership of the exclusive right to use the James Bond character is likely to be California-based, as is evidence of damages. Ultimately, however, while I find that the balance of conveniences tips slightly in favor of New York in this case, New York is not the only convenient forum for trial of this dispute and the equities and policy considerations discussed above favor litigating this case in California. See Continental Ins. Cos. v. Wickes Cos., 1991 U.S. Dist. LEXIS 12426, No. 90 Civ. 8215 (KMW), 1991 WL 183771, at *5 (S.D.N.Y. Sept. 6, 1991).
Even though Hanson and Lowe filed this lawsuit first, they did so only in response to MGM's cease-and-desist letter. Hanson and Lowe surely had the right both to reject MGM's offer to discuss settlement and to take an aggressive stance by immediately filing a declaratory judgment action when they received the cease-and-desist letter. They did not have the right, however, to obtain the ability to fire the first salvo by lulling MGM and Danjaq into believing that peace negotiations would precede any litigation. In view of these special circumstances, the case should be litigated in California.
For the reasons set forth above, the motion of Hanson and Lowe to enjoin prosecution of the Central District of California action is hereby denied. The cross-motion of MGM and Danjaq to dismiss this action in deference to the California action is granted. Accordingly, the complaint is dismissed without prejudice to the parties' claims and defenses in the California action.
Dated: New York, New York
July 25, 1996
United States District Judge