New York as the forum for suit against plaintiff in the parties' loan agreement. Plaintiff denies that Brazil has a greater interest in the dispute than the United States, noting that defendant GI is a Delaware corporation and defendant GBL a Bahamian company. Moreover, plaintiff notes that GI is a broker-dealer registered with the U.S. Securities and Exchange Commission and argues that the United States has a strong interest in checking fraudulent conduct by entities located in the United States that engage in trading securities.
The principles articulated in Gulf Oil Co. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947,), govern defendants' forum non conveniens motion. The Court's analysis proceeds in two steps. First it must determine whether an adequate alternative forum exists in which the case may be heard. E.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.2, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981); see Gilbert, 330 U.S. at 506-07. "Assuming there is such a forum, the Court then must balance a series of private and public interests in determining whether to retain the case or dismiss it in favor of [the] alternative forum." Ioannides v. Marika Maritime Corp., 928 F. Supp. 374, 377 (S.D.N.Y. 1996).
Availability of Alternative Forum
Defendants have submitted a declaration of Francisco Pinheiro Guimaraes, a Brazilian lawyer and partner in a Rio de Janeiro law firm, in order to demonstrate that the Brazilian courts are an available and suitable alternative forum. Certain basic elements of availability are not contested. Brazilian courts apparently recognize the existence of causes of action seeking remedies for the type of injuries plaintiff claims to have suffered and apply the laws of foreign jurisdictions if they determine that such laws properly are applicable. (Guimaraes Decl. PP 11-12) Moreover, defendants have indicated that they would consent to jurisdiction in Brazil as a condition of dismissal. (Def. Mem. at 11) Finally, the Court may condition dismissal on defendants' agreement to waive any statute of limitations defense that may have arisen under Brazilian law since the date that this action was filed, and may retain jurisdiction in the event that the Brazilian courts refuse to accept jurisdiction over the case. See, e.g., Calavo Growers of California v. Generali Belgium, 632 F.2d 963, 968 & n.6 (2d Cir. 1980) (district court should condition dismissal on waiver of limitations defenses and on foreign court's acceptance of jurisdiction), cert. denied, 449 U.S. 1084, 66 L. Ed. 2d 809, 101 S. Ct. 871 (1981). Accord El-Fadl v. Central Bank of Jordan, 316 U.S. App. D.C. 86, 75 F.3d 668, 679 (D.C.Cir. 1996).
Plaintiff's principal complaint about Brazil as a forum for resolution of this dispute is not directed so much at the availability of the forum as at its adequacy. There is no pretrial discovery of documents in Brazil comparable to that permitted in our federal courts. The declarations from Brazilian counsel submitted by each side confirm that, in litigation in a Brazilian court, a party may petition the court to appoint an expert who will inspect documents in the possession of an opposing party. The court then apparently may take testimony from the expert. (Guimaraes Decl. P 7; Pernidji Decl. at 2-3) Plaintiff contends that this procedure seldom has been used and that the court-appointed expert has access only to those documents which the party is willing to make available. (Pernidji Decl. at 3)
Plaintiff argues that such limited document discovery renders Brazil an inadequate forum for resolution of this dispute. He anticipates that defendants will attempt to pin any blame on Stallone, arguing that Stallone acted alone and without his supervisors' knowledge. In order to rebut such an argument, plaintiff contends that he must be able to inspect documents that are likely to be in the possession of GI or GBL. Plaintiff wants access also to documents that would confirm or refute his theory that GBL was the counter-party in the January 11 sale and January 12 purchase of bonds on his account.
The unavailability of U.S.-style document discovery in Brazil is far from dispositive on the issue of the adequacy of a Brazilian forum. Cf. Panama Processes, S.A. v. Cities Service Co., 650 F.2d 408 (2d Cir. 1981) (affirming dismissal in favor of Brazilian forum). "Some inconvenience or the unavailability of beneficial litigation procedures similar to those available in federal district courts does not render an alternative forum inadequate." Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1234 (2d Cir. 1996) (quoting Borden, Inc. v. Meiji Milk Products Co., Ltd., 919 F.2d 822, 829 (2d Cir. 1990), cert. denied 500 U.S. 953, 114 L. Ed. 2d 712, 111 S. Ct. 2259 (1991)). While the Court is not prepared to say that unavailability of document discovery would never render an alternative forum inadequate, cf. Borden, 919 F.2d at 829 (making dismissal conditional on availability of procedure for expedited relief in alternative forum), the circumstances in which that might be so would be rare indeed, and this is not such a case. Here, the key witnesses all would be available to testify in the alternative forum, plaintiff seeks documents that may or may not exist,
principally in anticipation of a defense that may or may not be raised, and a mechanism, however imperfect, exists under Brazilian law to allow for the inspection of documents in the possession of a party. In these circumstances, this Court is not prepared to say that the alternative forum is inadequate.
Private Interest Factors
As laid out in Gilbert, the next step in the forum non conveniens analysis is balancing the so-called "private interest factors" in order to determine the relative convenience of the forum and the proposed alternative.
"Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex', harass', or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gilbert, 330 U.S. at 508.