Pension Fund stocks. The first stage of the liquidation occurred in or about July 1991 when Maxwell or someone on his behalf instructed MSTC to deliver shares beneficially owned by the Pension Funds to a third party. This third party sold the shares and transferred the proceeds to Robert Maxwell Group even though it did not own the shares or have any right to the proceeds. Compl. PP 68-69. Then, between July 24, 1991 and July 27, 1991, other securities belonging to the Funds were sold, and, pursuant to instructions given by BIT, $ 61 million of the sales proceeds were transferred by MSTC to the National Westminster Bank account of Robert Maxwell Group. Compl. PP 70-71. Next, on or about August 8, 1991, $ 23.7 million worth of shares in a company called First Tokyo Investment Trust plc were sold by MSTC. The proceeds of the sale of these assets, which were beneficially owned by the Funds, were distributed by MSTC to Maxwell-controlled entities which had no right to them. Compl. P 72.
The proceeds of similar liquidations of LBI assets which occurred through August and into September 1991 were also transferred by MSTC to Maxwell-controlled companies. Compl. PP 74-75. The Pension Funds received none of the proceeds of these liquidations. Compl. PP 66-67, 76.
The amended complaint in this action was filed on August 15, 1995. On the theory that they are third-party beneficiaries of the Custody Agreement between LBI and MSTC, and/or disclosed or partially disclosed principals to that contract, the Funds' charge MSTC with (1) breach of contract; (2) breach of fiduciary duty; (3) aiding and abetting LBI's breach of fiduciary duty; (4) participating in LBI's breach of fiduciary duty; (5) fraud; and (6) aiding and abetting the fraud committed by the Maxwells, LBI and others. The plaintiffs each seek to recover their proportionate share of losses in a Common Investment Fund, of which BIM is the trustee, plus punitive damages.
In its motion, MSTC contends that it would be more convenient to try this case in England. In opposition, the Pension Funds argue that this is the more appropriate court and that an English court would be unsatisfactory. By agreement, the parties have conducted discovery limited to the issues presented by this motion. Each side has extensively briefed the issues and submitted voluminous supporting documentation.
In an early and seminal article on forum non conveniens the author defined the doctrine as dealing "with the discretionary power of a court to decline to exercise a possessed jurisdiction whenever it appears that the cause before it may be more appropriately tried elsewhere." Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Col. L. Rev. 1 (1929). That definition, I would submit, goes directly to the essence of the doctrine, if the phrase "more appropriately tried elsewhere" is understood to mean that "the ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice." Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 527, 91 L. Ed. 1067, 67 S. Ct. 828 (1947). Justice Brandeis acknowledged that "Courts . . . occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or non-residents, or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal." Canada Malting Co., Ltd. v. Paterson Steamships, Ltd., 285 U.S. 413, 423, 76 L. Ed. 837, 52 S. Ct. 413 (1932). The essence of the doctrine so elegantly and succinctly stated by Blair provides the skeleton to which flesh has been added by just two cases which warrant extended discussion, namely, Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947) and Piper Aircraft Company v. Reyno, 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). A discussion of the vast number of cases which have considered the doctrine, many of which have been cited in the excellent and extensive submissions by the parties, would be an affectation of research. A cursory resort to Shepard's Citations revealed that approximately 1600 cases have cited Gilbert and that approximately 1,000 cases have cited Piper Aircraft. It is thus fair to say, that the law of forum non conveniens is revealed in Gilbert and Piper Aircraft and the rest is commentary.
In Gilbert the plaintiff, a resident of Lynchburg, Virginia, sued Gulf, a Pennsylvania corporation qualified to do business in Virginia and New York, in the United States District Court for the Southern District of New York. The complaint alleged that Gulf, in violation of Lynchburg ordinances, carelessly delivered gasoline to the plaintiff's warehouse tanks and pumps causing an explosion and fire which destroyed the warehouse and the property stored in it. Gulf invoked the doctrine of forum non conveniens. The question before the Court was whether the district court had inherent power to dismiss the action pursuant to the doctrine and if it did, was the power abused. The jurisdiction of the court and venue were not in issue. Gulf's invocation of the doctrine succeeded in moving the court to dismiss the complaint and returning the plaintiff to the courts in Lynchburg. The Court's statement of the doctrine was expansive but not instructive in informing the judgment of a nisi prius judge regarding the appropriate invocation of the doctrine, viz: "The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." 330 U.S. at 507. The touchstones providing guidance to the appropriate invocation of the doctrine were subsequently suggested in that portion of the opinion for which Gilbert has been extensively cited, as follows:
An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. 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; . . . 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.
Factors of public interest also have a place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.