manufacturer and maintenance providers of the slide. While the inability to implead a third party is a factor that weighs in defendant's favor, it is not conclusive and courts have refused to dismiss actions on such grounds. See American Special Risk, 634 F. Supp. at 118. Because the balance of the private interest factors weighs heavily in the plaintiffs' favor, Virgin's inability to implead Atlantic Cabin Simulators is not enough to warrant a dismissal of this case.
In sum, Virgin's inconvenience in defending this action in New York is minimal compared to the inconvenience and expense plaintiffs would suffer in England. Unfamiliar with the English judicial system, plaintiffs would be required to obtain an English solicitor. Once the trial begins, they would incur travel, food, and lodging costs for themselves and for their witnesses. Not only would this trip be physically difficult for Massaquoi due to her ankle injury, but the litigation costs would be prohibitive. In fact, plaintiffs claim that they are financially unable to litigate in England.
See Affidavit of Yuku Massaquoi, dated September 13, 1996, at P 6. On the other hand, Virgin, a large commercial airline, does business in New York, and can easily and inexpensively transport witnesses and documents. Based on these private interest factors, it would be inequitable to force plaintiffs to litigate in England.
B. Public Interest Factors
Virgin argues that consideration of the public interest factors favors dismissal of this case. Because the incident occurred in England, the records are in England, and the slide was maintained in England, Virgin maintains that England has more contacts with the event and thus has a real interest in the outcome of the case. It argues that the only contact with the Southern District of New York is the "relatively insignificant fact" that Virgin does business there. Virgin also argues that since it is likely that English law will control, it is inefficient for a United States court to interpret and apply foreign law.
Virgin's assertion that public interest concerns render England a more appropriate court is overstated. On balance, the public interest factors do not weigh heavily in favor of dismissal. England certainly has an interest in the outcome of this litigation because the accident occurred there, and the case involves the alleged negligence of a British corporation. Nonetheless, New York has an equally strong interest in the case because Virgin regularly does business in New York, Massaquoi receives New York State Workers' Compensation and pays New York State taxes, and both plaintiffs live minutes away in New Jersey. Moreover, courts are often required to apply foreign law and therefore the likelihood of having to do so should not be a reason for dismissal. In particular, English law is less difficult to apply than the law of other foreign jurisdictions because there is no language barrier and it is quite similar to American legal tradition.
The plaintiffs' choice of forum must not be disturbed unless the balance of private and public factors favors the defendant. As American citizens, plaintiffs must not be deprived of their home forum unless there is a clear showing that their convenience is strongly outweighed by the defendant's inconvenience. Virgin has failed to sustain its burden of establishing that the balance of factors tips strongly in favor of dismissal. The inconvenience that Virgin would experience litigating in New York is not nearly as onerous as the difficulty and expense that the plaintiffs would suffer in England. Virgin already does business in New York, has litigated here before, and as an airline, it can travel to New York with relative ease. On the other hand, travelling is particularly difficult for Massaquoi, who already claims to have difficulty walking. Moreover, the cost of transporting and lodging her treating physicians would be prohibitive. There is no evidence in this case that plaintiffs sued in New York to harass the defendant. The Southern District of New York is simply the most convenient forum for plaintiffs, located only a short commute from their home. In light of the foregoing considerations, defendant's motion is denied.
Shira A. Scheindlin
Dated: New York, New York
October 22, 1996