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MASSAQUOI v. VIRGIN ATL. AIRWAYS

October 22, 1996

YUKU MASSAQUOI and DAVID G. MULBAH, Plaintiffs, against VIRGIN ATLANTIC AIRWAYS, Defendant.

Shira A. Scheindlin, U.S.D.J.


The opinion of the court was delivered by: SCHEINDLIN

SHIRA A. SCHEINDLIN, U.S.D.J.:

 Plaintiffs Yuku Massaquoi ("Massaquoi") and her husband David Mulbah ("Mulbah"), residents of Newark, New Jersey, sue defendant Virgin Atlantic Airways ("Virgin"), a United Kingdom corporation doing business in New York, to recover damages for injuries Massaquoi sustained during a training exercise at Virgin's training facility in England. Virgin moves to dismiss on grounds of forum non conveniens, arguing that England is a more appropriate forum. For the reasons stated below, the motion is denied.

 BACKGROUND

 At the time of the accident, Massaquoi was employed by Delta Airlines in New York at John F. Kennedy Airport. *fn1" Affirmation of David S. Ratner, Plaintiff's attorney, in Opposition to Defendant's Motion to Dismiss ("Ratner Aff."), dated September 16, 1996, at P 8. On April 4, 1995, Massaquoi and approximately thirty other Delta employees travelled to Gatwick Airport to participate in various training classes and exercises taught by Virgin employees. *fn2" Id. at P 12. As part of a 747 evacuation simulation, Massaquoi claims that the trainees were required to slide down an evacuation slide. She claims that she descended down the slide very quickly and when she reached the bottom, she flew off the slide and fractured her ankle. Id. at 17. She alleges that her injuries were caused by the "careless and negligent manner in which [Virgin] owned, operated, maintained, controlled, supervised and conducted training classes." Complaint at P 8.

 Massaquoi received emergency room treatment at Crawley hospital in London and was then transferred for emergency surgery at Bupa-Gatwick Hospital in London. Ratner Aff. at P 20. After six days, she left the hospital and remained at her sister's apartment in London for six weeks. See Deposition of Yuku Massaquoi, dated March 28, 1996, at 73. In mid-May she returned to her home in Essex County, New Jersey and sought the care of Dr. David Wolkstein, an orthopaedic surgeon. Ratner Aff. at P 22. Unable to work as a result of her injury, Massaquoi collects New York State Workers' Compensation benefits. She continues to see Dr. Wolkstein, as well as Dr. Norman Petigrow, a physician for the Workers' Compensation Board. Massaquoi brought this action to recover for her pain, suffering, medical expenses and loss of income. Id. at P 41. Mulbah's derivative action is for loss of consortium and services of his wife and for financial losses he incurred as a result of her injuries. Id. at P 42.

 DISCUSSION

 I. The Applicable Standard

 In a forum non conveniens analysis, "the ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice." Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 527, 91 L. Ed. 1067, 67 S. Ct. 828 (1947). As a threshold matter, a defendant seeking a change of venue must first demonstrate that an adequate alternative forum exists. See Blanco v. Banco Industrial de Venezuela, S.A., 997 F.2d 974, 980 (2d Cir. 1993). If indeed one does exist, a court must then choose between the two forums by balancing the "private interests" of the litigants and the "public interest" concerns of the court as set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). These so-called Gilbert factors address the two equitable principles of the forum non conveniens doctrine: the prevention of harassment by the parties and judicial administration. See Alcoa S.S. Co., Inc. v. M/V Nordic Regent, 654 F.2d 147, 151 (2d Cir.) (en banc), cert. denied, 449 U.S. 890, 66 L. Ed. 2d 116, 101 S. Ct. 248 (1980).

 The important private interest considerations include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for attendance of unwilling witnesses; (3) the cost of obtaining attendance of willing witnesses; (4) the possibility of viewing the premises, if viewing would be appropriate to the action; and (5) all other practical problems that make trial of a case easy, expeditious and inexpensive. 330 U.S. at 508. The public interest considerations include: (6) administrative difficulties resulting from court congestion; (7) imposing jury duty on people of a community which has no relation to the litigation; (8) the local interest in having controversies decided at home; and (9) the avoidance of unnecessary problems in the application of foreign law. Gulf Oil, 330 U.S. at 508-09.

 Because the relevant factors differ in each case, a district court is accorded considerable discretion in making the forum non conveniens determination. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). Nevertheless, the court's analysis must begin with the proposition that the plaintiff's choice of forum must not be disturbed unless the balance of the private and public interest factors strongly favors the defendant. See Gulf Oil, 330 U.S. at 508. Moreover, when the plaintiff is an American citizen and the alternative forum is foreign, the balance must be even stronger. See American Special Risk Ins. Co. v. Delta America Re Ins. Co., 634 F. Supp. 112 (S.D.N.Y. 1986). A plaintiff should not be deprived of her home jurisdiction "except upon a clear showing of facts which either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's convenience, which may be shown to be slight or nonexistent, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court's own administrative and legal problems." Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 524, 91 L. Ed. 1067, 67 S. Ct. 828 (1947).

 Accordingly, the defendant who moves to dismiss on the basis of forum non conveniens bears a heavy burden at each stage of analysis. See Virgin Atlantic Airways v. British Airways, 872 F. Supp. 52, 61 (S.D.N.Y. 1994). Whether the plaintiffs' choice of forum should be disturbed must be determined with this standard in mind.

 II. The Existence of an Adequate Alternative Forum

 In Piper Aircraft, the Supreme Court held that at the outset of any forum non conveniens inquiry, the court must first determine whether an alternative forum exists. 454 U.S. at 254 n. 22. Therefore, before balancing the Gilbert factors, the first question is whether England is an adequate alternative forum. This requirement is usually satisfied if the defendant is amenable to process in the alternative forum. However, if the remedy offered by the other forum is "clearly unsatisfactory," the alternative forum may not be deemed adequate. Id. The mere showing that the ...


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