The opinion of the court was delivered by: VICTOR Marrero, District Judge.
Plaintiffs in this matter, Sakinah Ismail, Abdullah Mohammad Sahyouni,
Abeer Abdulla Sahyouni, Mona Abdullah Sahyouni, Nora Abdullah Sahyouni,
Abmed Abdullah Sahyouni and Mohammad Sahyouni (collectively
"Plaintiffs"), consist of seven individuals who assert in their complaint
that they are residents of Syria, Saudi Arabia and Kuwait.*fn1 Defendant
American University of Beirut ("AUB") is a private institution of higher
education chartered by the State of New York that maintains an office in
New York and administers the American University Hospital in Beirut
("AUH") as the teaching hospital of AUB. Plaintiffs allege that
defendants Nadim Kanj ("Kanj") and Ghada Kamar ("Kamar") (together with
AUB, the "Defendants") are physicians licensed to practice medicine in
the State of New York. Plaintiffs allege no other connection between Kanj
and Kamar and this forum, except that Kanj and Kamar rendered medical
treatment to Ismail at AUH in October 2000. John Does 1-10 are defendants
whose identity is presently unknown and who participated in the hospital
services Ismail received at AUH from October 2000 to the present date.
The complaint indicates that the events constituting the underlying
action arose from injuries Ismail claims she suffered by reason of
alleged negligent medical care she received from Defendants, and from
which she has never recovered, at AUH after she was admitted for certain
treatment there on October 13, 2000.
On December 16, 2002, following the initial conference on this matter,
the Court directed the parties to address the appropriateness of this
District as venue for this action and the applicability of the doctrine
of forum non conveniens to the facts of this case. Counsel for defendants
AUB and AUH indicated that these defendants expected to move for
dismissal of this action on these grounds.
Plaintiffs responded by letter received by the Court on December 27,
2002.*fn2 In it, Plaintiffs advance four arguments in support of
maintaining the action in this District. First, they contend that under
the doctrine of forum non conveniens Plaintiffs' choice of venue is
entitled to great deference and that Defendants have the burden of
demonstrating that an adequate alternate forum exists. Nonetheless, they
point out that the most recent travel warning issued by the United States
Department of State updating on the security situation in Lebanon alerts
American citizens of the potential dangers of travel to Lebanon and
recommends that Americans exercise caution if traveling there. Second,
Plaintiffs argue that "[d]iscovery could very possibly lead to
information which could substantially affect the outcome of any
determination" concerning the issue of venue in this forum. Third,
Plaintiffs' describe difficulties they have encountered in Lebanon
obtaining medical records from AUB short of a court order, and in
prompting a criminal investigation of the events that resulted in Ismail's
medical injuries. Finally, Plaintiffs maintain that Lebanon's court
system would not offer an effective forum to enable Plaintiffs' to obtain
necessary documents, and may not provide similar causes of action.
By letter dated December 30, 2002, and subsequently on January 13,
2003, by motion to dismiss on the grounds of improper venue and pursuant
to the doctrine of forum non conveniens, defendants AUB and AUH argue
that dismissal on forum non conveniens grounds is appropriate. Plaintiffs
did not respond to the motion to dismiss by the return date of February
11, 2003. The Court therefore considers the motion as unopposed.
AUB asserts that it operates the AUH as part of the University's
Medical Center in Beirut; that the Medical Center is managed, staffed and
administered under the direction of AUB officials in Beirut and that the
services of the hospital's personnel are performed solely in Beirut and
its records are all located there. (Affidavit of Eileen F. O'Connor,
dated January 8, 2003, attached to Notice of Motion to Dismiss on the
Grounds of Improper Venue and Pursuant to the Doctrine of Forum Non
Conveniens, dated January 13, 2003, ¶¶ 4-5.) AUB's only presence in
the United States is an administrative office consisting of 18 persons
engaged primarily in fund-raising. (Id. ¶ 5.) AUB further states
that AUB is amenable to process in Lebanon, that it has been sued in
Lebanon before, that Lebanese courts permit litigation of claims based on
medical malpractice, and that AUB agrees to submit to the jurisdiction of
Lebanese courts and waive the statute of limitations in connection with
Plaintiffs' claims. (Id. ¶ 11.)
In support of their position, Defendants cite to this Court's ruling in
Gibbon v. American Univ. of Beirut, No. 83 Civ. 1183, slip op. (S.D.N.Y.
Sept. 27, 1983). In that case, a malpractice claim brought in this
District against AUB during the peak of the Lebanese civil war, the
action was dismissed on forum non conveniens grounds. Defendants point to
evidence that civil and political conditions in Lebanon today have
improved since the end of the civil conflict there in 1990, rendering
that country a far more stable and secure forum to pursue litigation than
when Gibbon was decided.
Having considered the circumstances described by Plaintiffs in their
complaint and the parties' submissions in response to the Court's
December 16, 2002 Order, as well as the AUB's motion to dismiss and
related papers, the Court concludes that this action should be dismissed
on the grounds of forum non conveniens.
Weighing the pertinent factors in accordance with the inquiry and
balancing compelled by the Supreme Court's rulings in Gulf Oil Corp. v.
Gilbert, 330 U.S. 501 (1947) and Piper Aircraft Co. v. Reyno, 454 U.S. 235
(1981), in connection with application of the doctrine of forum non
conveniens, the circumstances overwhelming favor dismissal of this
action. See also Iragorri v. United Techs. Corp., 274 F.3d 65 (2d Cir.
2001); VictoriaTea.com, Inc. v. Cott Beverages Canada, No. 02 Civ. 6512,
2003 WL 102882 (S.D.N.Y. Jan. 10, 2003); Moscovits v. Magyar Cukor Rt.
and Agrana Int'l AG, No. 00 Civ. 0031, 2001 WL 767004 (S.D.N.Y. July 9,
2001), aff'd, 2002 WL 992339 (2d Cir. May 14, 2002); Ilusorio v.
Ilusorio-Bildner, 103 F. Supp.2d 672 (S.D.N.Y. 2000), aff'd, 2001 U.S.
App. Lexis 17157 (2d Cir. March 23, 2001).
Where the circumstances indicate that the parties and events bear no
bona fide connection, or at best may have only marginal links to the
forum, plaintiffs' choice of venue is not entitled to special deference,
in particular where the claimants are all foreign residents. See Reyno,
454 U.S. at 256; Iragorri, 274 F.3d at 72; VictoriaTea.com, Inc., 2003 WL
102882, at *3. Weighing all of these considerations strongly suggests to
the Court that forum-shopping reasons motivated Plaintiffs' choice of
this District. See Iragorri, 274 F.3d at 72 ("[T]he more it appears that
the plaintiff's choice of a U.S. forum was motivated by forum-shopping
reasons . . . the less deference the plaintiff's choice commands and,
consequently, the easier it becomes for the defendant to succeed on a
forum non conveniens motion by showing that convenience would better be
served by litigating in another country's courts.").
Second, there is no persuasive indication that Lebanon is not a proper
alternate forum. As this Court already found in Gibbon, AUB is subject to
process there and the forum recognizes actions for medical malpractice
such as that asserted by Plaintiffs here. See Gibbon, slip op.; see also
Jeha v. Arabian Am. Oil Co., 751 F. Supp. 122, 125 (S.D. Tex. 1990)
(finding Lebanon an adequate forum for a medical malpractice action
during civil conflict in 1990). Similarly insufficient are Plaintiffs'
conclusory statements about the adequacy of Lebanon's justice system and
their assertion that the Lebanese courts may not recognize all of their
causes of action. See Moscovits, 2001 WL 767004, at *3 ("While
[plaintiff] contends that [the proposed alternate forum] does not provide
[certain] specific causes of action . . . the adequacy of an alternate
forum does not depend upon the availability of causes of action identical
to those in the United States.") (citing Capital Currency Exch., N.V. v.
Nat'l Westminster Bank PLC, 155 F.3d 603, 610 (2d Cir. 1998)); see also
Monegasque de Reassurances S.A.M. v. Nak Naftogaz of Ukraine,
158 F. Supp.2d 377, 384-85 (S.D.N.Y. 2001) (noting that petitioner's
conclusory arguments were insufficient to permit the Court "to pass value
judgments on the adequacy of justice and the integrity of [the foreign
state's] judicial system on the basis of no more than [petitioner's] bare
denunciations and sweeping generalizations."), aff'd, 311 F.3d 488 (2d
Cir. 2002). As Defendants point out, this Court's findings in Gibbon
relevant to prevailing conditions in 1983, when Lebanon was torn by civil
strife, persuasively argues in favor of a determination that Lebanon
remains an adequate alternate forum today.