and quasi-contractual claims, considering that the contract was
performed and largely negotiated in the Netherlands and that the
subject matter of the contract is located there. See Philips
Credit Corp., 953 F. Supp. at 503. The applicability of Dutch law
would arguably be even more clear with regard to plaintiff's
copyright infringement claims, since the infringing acts all
occurred in the Netherlands. See Update Art, Inc. v. Modiin Pub.,
Ltd., 843 F.2d 67, 73 (2d Cir. 1988); see also De Bardossy v.
Puski, 763 F. Supp. 1239, 1243 (S.D.N.Y. 1991); London Film
Productions Ltd. v. Intercontinental Communications, Inc.,
580 F. Supp. 47, 50 n. 6 (S.D.N.Y. 1984).
Having therefore concluded that the Netherlands is an adequate
alternative forum for this lawsuit, the second step in the forum
non conveniens analysis is to determine which forum is more
convenient, applying the "public" and "private" interest factors
identified in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508,
67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). See Evolution Online,
145 F.3d at 510; see also PT United Can Co. v. Crown Cork & Seal
Co., 138 F.3d 65, 73 (2d Cir. 1998). The "public" factors include
concerns about court congestion, the interests of forums in
deciding local disputes, and the interest in having foreign
tribunals decide issues of foreign law, id. at 508-9, 67 S.Ct.
839, while the "private" factors include the access to sources of
proof, cost of obtaining willing witnesses, availability of
compulsory process for unwilling witnesses, and other practical
concerns, id. at 508, 67 S.Ct. 839. While normally there is a
presumption in favor of the plaintiff's chosen forum, here "the
exchange of drafts containing consistent [Dutch] forum-selection
clauses eliminates" this presumption, Evolution Online, 145 F.3d
at 511, and, accordingly, this Court is to analyze "the Gulf Oil
factors with a level set of balances, rather than one weighed
heavily in favor of the plaintiff's choice of forum." Id., citing
Kultur Int'l Films Ltd. v. Covent Garden Pioneer, FSP, Ltd.,
860 F. Supp. 1055 (D.N.J. 1994).
With respect to the public factors, Dutch substantive law, as
previously discussed, will likely apply to some or all of the
underlying disputes in this case, and the Courts of the
Netherlands are in the best position to determine and apply their
own law. See The Travelers Indemnity Co. v. S/S Alca, 710 F. Supp. 497,
502 (S.D.N.Y.), aff'd 895 F.2d 1410 (2d Cir. 1989). Further,
the interest of the Netherlands in this case is greater than that
of the United States, as the whole purpose of this transaction
was to provide services in the Netherlands, all events of
substance occurred there, and the final product is located there.
The most relevant private factor in this case is location of
the sources of proof, which likewise weighs significantly in
favor of a Dutch forum. In particular, defendants note that no
less than five specific categories of highly relevant documents
are located in the Netherlands (and are in Dutch). While
plaintiff alleges there are relevant documents in New York, it
largely fails to identify or quantify them. Further, the computer
programs themselves — potentially major sources of proof — are
located in the Netherlands.
With respect to the other private factors, most are neutral.
For instance, the parties have identified roughly the same number
of nonparty witnesses. Although plaintiff strenuously argues that
it is in precarious financial condition and would be unable to
bring suit in the Netherlands, it supplies no evidence to support
this contention aside from conclusory statements from its
President. See, e.g., Affidavit of Bruce Fancher, dated March
21st 1996, ¶ 6 ("Evolution is a small corporation with limited
financial resources . . . Frankly, I am not certain that
Evolution has the resources to litigate abroad."). Moreover, no
such objection was ever raised to the many contract drafts that
would have obligated plaintiff to sue in the Netherlands. Without
evidentiary support, plaintiff's belated
claims of poverty cannot be afforded substantial weight.
On balance, the Court concludes that, if the enforceable
forum-selection clause did not already mandate referral to a
Dutch forum, the balance of convenience, weighing substantially
in favor of the Dutch forum, would oblige the Court, in the
exercise of its discretion, to dismiss this case on the basis of
forum non conveniens.
For the foregoing reasons, this case is hereby dismissed. Clerk
to enter judgment.