the court to determine whether it has jurisdiction over the parties
to and the subject matter of the suit. If the jurisdiction of a
federal court is questioned, the court has the power, subject to
review, to determine the jurisdictional issue."), I turn to the
issue of which State's law governs the claims in suit.
Judge Chatigny transferred the case to this Court pursuant to
28 U.S.C. § 1406(a). Therefore, as both parties concede,*fn2 the law of
the transferee forum (New York) applies, including its choice of law
rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496
(1941). Under New York's choice of law, courts ordinarily apply an
"interests" analysis for the purposes of determining which state's law
applies in a multi-state tort case. Tripodi lives and works in
Connecticut, not in New York, and he claims in his motion papers that the
effects of the allegedly malicious lawsuit brought by Dubin on behalf of
the Union were intended to be felt in Connecticut, by forcing Tripodi to
maintain a union shop at his place of business in that state. So he
argues that Connecticut has the greatest interest in having its law
But the paramount interest in cases involving the torts of malicious
prosecution and abuse of process is that of the state whose courts were
allegedly abused. Therefore, the general rule in such actions is that the
governing law is that of the state where the proceeding complained of
took place. Restatement (Second) of Conflicts of Laws § 155. The
proceeding complained of by Tripodi took place in the Southern District
of New York. Therefore, it would seem that New York law governs the
substantive allegations of the complaint — or, at the very least,
an interest as great as that of Connecticut. In either event, New York
would look to its own law to govern plaintiff's claims.
New York case law supports the proposition that New York's interest in
this action is greater than that of Connecticut. In Heany v. Purdy,
29 N.Y.2d 157, 324 N.Y.S.2d 47 (1971), the Court of Appeals ruled that the
law of the forum state should apply in cases involving the intentional
torts of false arrest, false imprisonment and malicious prosecution.
Citing Babcock v. Jackson, 12 N.Y.2d 473, 483, 240 N.Y.S.2d 743, 750
(1963), New York's highest court announced that, where "plaintiff is
claiming that defendant used its legal machinery maliciously. . . . it
would be almost unthinkable to seek the applicable rule in the law of
some other place." Heany, 29 N.Y.2d at 159.
Plaintiff nonetheless argues that New York has from time to time
recognized that another state has a greater interest than it does in
having its law apply in a malicious prosecution action. However, the
Second Circuit case cited by plaintiff for that proposition, Weiss v.
Hunna, 312 F.2d 711 (2d Cir. 1963), turned on an entirely different
issue. In Weiss, an Austrian attorney applied for an injunction in
Austria to enjoin a transfer of shares that was to take place in New
York. The plaintiff sued in New York, charging the Austrian with abuse of
process. The Second Circuit agreed that New York law applied, but only
because Austrian law did not provide the plaintiff with a sufficient
remedy to redress the frustration of his contract. Here, Tripodi has an
adequate remedy for abuse of process by the Union and Dubin in the New
York State Supreme Court, and perhaps in the Connecticut Superior Court
as well if they are amenable to service in Connecticut.
Assuming, arguendo, that Connecticut's interest in this matter (which
derives solely from Tripodi's personal interests) were as great as those
of New York, New York's conflicts of law would look to the law of the
place where the tort was committed. See Bing v. Halstead, 495 F. Supp. 517,
520 (S.D.N.Y. 1980) ("When the interest analysis does not point
clearly to the law of any jurisdiction, the law of the place where the
tort occurred prevails."). The plaintiff concedes that the locus delecti
is New York, not Connecticut. Under the Restatement (Second) of Conflict
of Laws § 155, the lex locus delecti rule is trumped only when
another State has a greater interest than does the original forum state
in having its law applied. Plaintiff has not pointed to any particular
reason why Connecticut (as opposed to plaintiff) would care one way or
the other about this case. No great public policy issues are involved,
and plaintiff can concededly recover against the Union, if not against
Dubin personally, for whatever wrong was done to him by the commencement
and prosecution of the original lawsuit. Thus, New York law governs.
Because the Union is an indispensable party to this action under New
York law, the case should be dismissed under Rule 19, as the presence of
the Union destroys complete diversity.
Judicial economy also favors this course. Plaintiff has as much as
stated that he intends to find a forum where he can pursue the Union
separately if he continues his action against Dubin in this Court. (See
Memorandum in Support of Plaintiff's Motion at p. 3.) There is a strong
public policy against litigating the same claim against two different
defendants in two different fora, both because of the risk of
inconsistent verdicts and because of the waste of judicial resources.
Plaintiff has a perfectly adequate forum in the state courts, and he can
obtain redress against both the Union and Dubin in a single action.
In view of the challenge to jurisdiction, the Court had already
withdrawn its opinion dated March 27, 2000. All other pending motions are
denied as moot by virtue of this opinion.
The clerk is directed to enter judgment dismissing the complaint. This
constitutes the decision and order of the Court.