The opinion of the court was delivered by: Marrero, District Judge.
Plaintiff Erlinda K. Ilusorio, a citizen and life-long resident
of the Philippines, brings this action against Erlinda
Ilusorio-Bildner ("Mrs.Bildner"), her daughter, and Albert
Bildner ("Mr.Bildner"), her son-in-law, for misappropriation and
libel. Defendants have moved for dismissal of all claims on the
ground of forum non conveniens, arguing that the more convenient
place for this litigation is the Philippines. Alternatively,
defendants seek dismissal pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure on the ground that plaintiff has
failed to state a claim upon which relief can be granted. For the
reasons set forth below, the Court conditionally grants the
motion based on forum non conveniens and, therefore, declines to
address the alternative portion of the motion.
Plaintiff's complaint alleges four causes of action: two claims
for misappropriation against Mrs. Bildner and two claims for
libel, one against each of the defendants. Defendant Erlinda
Ilusorio-Bildner has relocated to and presently resides in the
Philippines, while her husband, defendant Albert Bildner, lives
in New York and, according to representations made at oral
argument, does not plan to relocate to the Philippines. See
District Court Transcript, dated Feb. 9, 2000 ("Tr."), at 11.
The misappropriation claims in this case focus on the ownership
of approximately $3.5 million (the "Funds") sent by wire
transfers from certain Philippine banks to Mrs. Bildner in New
York between September 1996 and May 1997 and whether the Funds
belonged to or were beneficially owned by plaintiff or by
Potenciano Ilusorio, plaintiff's former husband and Mrs.
Bildner's eighty-seven year old father who resides in the
Philippines. Plaintiff claims that the Funds were part of her
estate; that they were wired pursuant to an agreement she had
with Mrs. Bildner; and that Mrs. Bildner breached the agreement.
Mrs. Bildner does not dispute that she received the Funds, but
claims that the Funds belonged to her father; that she treated
them as belonging to her father; and that, in her capacity as her
father's authorized agent, she managed and used the Funds in
accordance with his wishes.
Plaintiff's libel claims are based on two letters written by
Mr. Bildner in New York which were published only in the
Philippines. On March 3, 1999, Mr. Bildner wrote and sent one
letter addressed to the Chairperson and eleven members of the
Board of Trustees at Philippine Women's University (the "Board")
regarding the Board's decision to honor plaintiff. On March 11,
1999, Mr. Bildner wrote and sent a letter addressed to the
Chairperson and four other officers and directors of the
Philippine National Centennial Commission regarding that
organization's decision to honor plaintiff and also enclosed a
copy of his March 3, 1999 letter to the Board. In addition, Mr.
Bildner sent copies of these letters to plaintiff's brothers.
Within two weeks after Mr. Bildner dispatched his second letter,
plaintiff commenced a lawsuit for libel in the Philippines
against Mr. and Mrs. Bildner based on both letters.*fn1 On or
about May 26, 1999, Mr. Bildner moved to dismiss the Philippine
libel action for lack of personal jurisdiction. Plaintiff
commenced the instant action, the libel claims of which are based
on the same facts as plaintiff's Philippine libel action, on or
about June 14, 1999.
(1) Adequate Alternative Forum
To start, the Court must ascertain if an adequate alternative
forum exists. Id. at 506-07, 67 S.Ct. 839. An alternative forum
is adequate if defendants are amenable to service of process
there and the forum permits litigation of the subject matter of
the dispute. See Piper Aircraft Co. v. Reyno, 454 U.S. 235,
254, n. 22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), reh'g denied,
455 U.S. 928, 102 S.Ct. 1296, 71 L.Ed.2d 474 (1982). As an
initial matter, the Court notes that several courts in this
Circuit, in forum non conveniens rulings, have concluded that the
Philippines is an adequate alternative forum. See, e.g., Del
Fierro v. Pepsico Int'l, 897 F. Supp. 59 (E.D.N.Y. 1995);
Transunion Corp. v. Pepsico, Inc., 640 F. Supp. 1211 (S.D.N Y
1986), aff'd, 811 F.2d 127 (2d Cir. 1987); Cruz v. Maritime
Co. of Philippines, 549 F. Supp. 285 (S.D.N.Y. 1982), aff'd,
702 F.2d 47 (2d Cir. 1983).
Here, the adequacy of the Philippines seems to be clear from
plaintiff's own conduct; she has commenced four lawsuits in the
Philippines against one or both of the defendants who are before
this Court, all of which remain pending. See Declaration of
Lorna Patajo-Kapunan, sworn to Nov. 10, 1999 ("Patajo-Kapunan
Decl."), ¶ 5; Defendants' Memorandum of Law in Support of Motion
to Dismiss ("Defendants' Memo") at 1. In addition, there are "36
total lawsuits" pending in the Philippines that derive from
financial disputes among members of the Ilusorio family,
including Mrs. Bildner, her parents and her siblings. See
Supplemental Declaration of Lorna Patajo-Kapunan, sworn to Jan.
18, 2000 ("Patajo-Kapunan Supp. Decl."), ¶ 3.*fn2
Second, plaintiff may litigate the subject matter of her claims
in the Philippines because Philippine law recognizes separate
civil claims for libel and misappropriation. See Patajo-Kapunan
Decl., ¶¶ 9, 11. Indeed, plaintiff has admitted that one of the
four pending Philippine actions between the parties involved here
in New York is a libel action "against defendants based upon the
letters written by Bildner." Declaration of Manuel R. Singson,
sworn to Dec. 17, 1999 ("Singson Decl."), ¶ 4; Patajo-Kapunan
Decl., ¶¶ 5-6, Ex. B. The Court further understands, based on
representations at oral argument, that defendants are suing
plaintiff in the Philippines for acts of misappropriation related
to those at issue here, and concludes that plaintiff may be able
to file the misappropriation claims in her New York complaint as
a counterclaim in the Philippine action. See Tr. at 4, 14.
Furthermore, the Court finds that the remedies afforded by
Philippine courts — damages, attorney's fees and costs — address
the subject matter of plaintiff's four claims in an adequate and
satisfactory manner. See Patajo-Kapunan Decl., ¶¶ 10, 12;
Singson Decl., ¶ 7.
Regarding service and jurisdiction, plaintiff has conceded,
both explicitly and implicitly, that the Philippines is an
adequate alternative for her action as to Mrs. Bildner. See Tr.
at 27; Plaintiff's Memorandum of Law in Opposition to Motion to
Dismiss ("Plaintiff's Opposition Memo") at 4-5. To this end, the
Court observes that three of the four causes of action set forth
in the complaint here are against Mrs. Bildner and that Mrs.
Bildner does not challenge jurisdiction in the Philippines. See
Tr. at 9-10, 23.
With respect to Mr. Bildner, plaintiff's sole argument is that
the Philippines may be inadequate because of Mr. Bildner's
challenge to jurisdiction in the pending Philippine libel action
brought by plaintiff. See Tr. at 27; Plaintiff's Opposition
Memo at 4-5. In fact, plaintiff has informed this Court on more
than one occasion that "[i]f Mr. Bildner consents to the
jurisdiction of the Philippines, the libel portion of our claim
[the only claim in the complaint herein against Mr. Bildner]
properly belongs in the Philippines." Tr. at 28; see Tr. at 27,
41, 57. While it appears that Mr. Bildner may be amendable to
service in the Philippines (see Patajo-Kapunan Decl., Ex.
B),*fn3 defendants have advised that "Mr. Bildner would not
subject himself to the jurisdiction of the Philippine courts at
the present time" (Tr. at 11),*fn4 while simultaneously arguing
that "Mr. Bildner does not want this case to be tried in New
York" and that "[h]is main concern is that this case not proceed
in New York because it is not the appropriate forum." Tr. at 25.
The Court finds defendants' position to be inconsistent at best
(see Tr. at 23), and since the Philippines is an otherwise
adequate alternative forum, dismissal of this action is dependent
on the consent of Mr. and Mrs. Bildner to service of process and
personal jurisdiction in the Philippines in accordance with the
conditions set forth in this Decision. See discussion, infra.
Having identified the Philippines as an adequate alternative
forum, the Court must next balance the relevant private and
public interest factors to determine which forum "will be most
convenient and will best serve the ends of justice." Peregrine
Myanmar Ltd. v. Segal, 89 F.3d 41, 46 (2d Cir. 1996).
As a preliminary matter, the Court notes that there is
generally a strong presumption in favor of a plaintiff's choice
of forum. See Piper Aircraft Co., 454 U.S. at 255-56, 102 S.Ct.
252. Defendants, therefore, ordinarily have the burden of
overcoming this presumption by proving that "the balance of
convenience tilts strongly in favor of trial in the foreign
forum." R. Maganlal & Co. v. M.G. Chem. Co., Inc.,
942 F.2d 164, 167 (2d Cir. 1991). This presumption, however, carries less
force and is entitled to less deference in a case commenced by a
foreign plaintiff. See Piper Aircraft Co., 454 U.S. at 256, 102
S.Ct. 252; Capital Currency Exch., N.V. v. National Westminster
Bank PLC, 155 F.3d 603, 612 (2d Cir. 1998), cert. denied,
526 U.S. 1067, 119 S.Ct. 1459, 143 L.Ed.2d 545 (1999); Murray v.
British Broad. Corp., 81 F.3d 287, 290 (2d Cir. 1996). As
recognized previously, plaintiff is a citizen and life-long
resident of the Philippines who has advanced three ...