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ILUSORIO v. ILUSORIO-BILDNER

May 18, 2000

ERLINDA K. ILUSORIO, PLAINTIFF,
V.
ERLINDA ILUSORIO-BILDNER AND ALBERT BILDNER, DEFENDANTS.



The opinion of the court was delivered by: Marrero, District Judge.

DECISION AND ORDER

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.

FACTS

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.

DISCUSSION

(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.

(2) The Gilbert Factors

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 ...


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