claims for claims under the tort of deceit, (see Firth Aff. II P 18) does not make the remedies available to it in Hong Kong inadequate. Similarly, the uncertainty of Hong Kong's legal system does not now render the courts in that jurisdiction inadequate.
2. The Private Interests Factor
At this point, the private and public interests involved in this action need not be addressed in great depth. In weighing the private interests at play in a forum non conveniens analysis, courts generally consider several factors including: the relative ease of access to sources of proof; the availability of compulsory process for attendance of unwilling witnesses; the cost of obtaining willing witnesses and all other practical problems that make trial of a case easy, expeditious and inexpensive, as well as the enforceability of a judgment if one is obtained. Murray, 906 F. Supp. at 863 (citations omitted). Consideration of the private interests in this case suggests that this dispute not be allowed to proceed in this Court. Hong Kong appears to be the more convenient forum for the litigation of this case.
While the Court is not persuaded to dismiss this action on the basis of Defendants' references to Fustok v. Banque Populaire Suisse, 546 F. Supp. 506 (S.D.N.Y. 1982) (a case in which both parties were non-resident foreigners), considerations of practical convenience weigh in favor of litigating this case in Hong Kong over New York. As the Defendants persuasively note, not once does the Complaint make reference to the United States or New York. (Defs.' Mem. Law at 8.) While the Defendants are United States entities with their principal place of business in New York, they are a global entity that clearly serviced Dragon's Asia-Pacific needs locally. It is presumed that most of the witnesses and paperwork incident to the upcoming trial are not currently located in the United States, (Ninkov Aff. PP 1-2; Defs.' Reply Mem. Law at 8), thereby suggesting that this Court is a forum non conveniens. See Murray, 906 F. Supp. at 864.
Lastly, this Court is not persuaded to retain this action in order to accord deference to the Plaintiff's choice of forum. While there is a strong presumption in favor of a plaintiff's choice of forum, it has also been held that the "presumption applies with less force when the plaintiff or real parties in interest are foreign." Piper, 102 S. Ct. at 265-66. The plaintiff's choice of a home forum is usually viewed as a convenient choice. Id. In this case, it is difficult to see how the Plaintiff's choice of a forum thousands of miles from either office it maintains (in Australia and Hong Kong) is a choice of convenience. Furthermore, the Plaintiff initially chose the Hong Kong forum.
Defendants now submit to the jurisdiction of the Hong Kong Court. And, provided that the Plaintiff brings an action in New York to enforce a Hong Kong judgment that is "final, conclusive and enforceable where rendered", that judgment will be recognized as "conclusive between the parties to the extent that it grants or denies recovery of a sum of money . . . ." In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195, 204 (2d Cir.), cert. denied, 484 U.S. 871, 108 S. Ct. 199, 98 L. Ed. 2d 150 (1987).
3. The Public Interests Factor
Public interest factors relevant to the Forum Non Conveniens determination include court congestion, the local interest in having localized controversies decided at home, the unfairness of imposing the burden of jury service on citizens in a forum unrelated to the dispute, and the appropriateness of trying a case in a forum which is familiar with the law to be applied. Murray, 906 F. Supp. at 865 (citations omitted). As the parties have not addressed all these particular factors in great detail, this Court will generally address the public interests involved in this action.
Considering the applicable public interests here, it is clear that this dispute should be litigated in Hong Kong. Hong Kong was the sight of most of the meetings about the transactions in question and the disputed options were intended to track the Japanese Stock Exchange in one instance and simulate warrants listed on the Hong Kong Stock exchange in the other. Compared to Hong Kong, this Court is at a greater distance from the site of the action. Furthermore, Hong Kong has an local interest in having this "localized controversy decided at home." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). Lastly, the fact that the Defendant entities are based in this country is not weighty enough to allow this case to proceed in this Court. See Transunion Corp. v. Pepsi Co, Inc., 811 F.2d 127, 129 (2d Cir. 1987).
The Defendants' motion for dismissal pursuant to the doctrines of deference to foreign proceedings and forum non conveniens is GRANTED upon the condition that Defendants submit to jurisdiction and service of process in Hong Kong, as well as agree to the amendment of pleadings and joinder of parties in that action.
Plaintiff and Defendants have sixty (60) days in which to fulfill the conditions stated above, at which time they shall submit a proposed Order of dismissal for the Court's signature.
Dated: New York, New York
January 14, 1997
Deborah A. Batts