Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

VAN DER VELDE v. PHILIP MORRIS INCORPORATED

January 9, 2004.

DAVID VAN DER VELDE, deceased, by and through his Executrix, GABRIELLA VAN DER VELDE, Plaintiff
v.
PHILIP MORRIS INCORPORATED, Defendant



The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion

Plaintiff brings this action to recover compensation for the injury and death of her husband, David Van Der Velde ("Decedent"), whose injury and death were allegedly caused by smoking cigarettes manufactured and sold by Philip Morris Incorporated ("PMI"). Plaintiff's complaint includes several causes of action, including claims for negligence, strict: liability, fraud and concealment, breach of express warranty, conspiracy, and a claim under New York General Business Law § 350. Decedent was a life-long citizen and resident of England, whose smoking was largely confined to England,*fn1 who received medical care and eventually died in England, and whose estate was Page 2 administered in England. Defendant PMI moves to dismiss this case on the grounds of forum non conveniens. In bringing this motion, Defendant agrees (a) to submit to the jurisdiction of the English courts to adjudicate this action, (b) to provide relevant documents and make its employees available to testify in England at its own expense, and (c) to waive any statue of limitations defense in an English action by Plaintiff on the basis of any limitation period expiring between the date of filing this action and 60 days following its dismissal. For the reasons detailed below, Defendant's motion is GRANTED.

DISCUSSION

  The decision to dismiss a case on forum non conveniens grounds "lies wholly within the broad discretion of the district: court. "Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1232 (2d Cir. 1996). Whether dismissal on the grounds of forum non conveniens is appropriate is a three-step process: First, the court must determine what deference is owed plaintiff's choice of forum. Second, the court must determine whether an adequate alternative forum exists. Third, in the event that an adequate alternative forum does exist, the court must balance the public and private interest factors articulated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947, A. Deference to the Plaintiff's Forum

  The first level of inquiry in a forum non conveniens Page 3 analysis is to determine what deference is owed Plaintiff's choice of forum. This Court begins with the assumption that the Plaintiff's choice of forum will stand unless the defendant can demonstrate that reasons exist to afford it less deference. The "degree of deference to be given to a plaintiff's choice of forum moves on a sliding scale depending on several relevant considerations." Iragorri v. United Techs. Corp., 274 F.3d 65, 71 (2001). This "sliding scale" approach can be described as follows:
[T] he greater the plaintiff's or the lawsuit's bona fide connections to the United States and to the forum of choice and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States, the more difficult it will be for the defendant to gain dismissal for forum non convenien. . . . On the other hand, the more it appears that the plaintiff's choice of a U.S. forum was motivated by forum-shopping reasons — such as attempts to win a tactical advantage resulting from local laws that favor the plaintiff's case, the habitual generosity of juries in the United States or in the forum district, the plaintiff's popularity or the defendant's unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum — 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 be better served by litigating in another country's courts.
Id. at 71-72.

  Here, there are two reasons to accord Plaintiff's choice a Page 4 forum little deference. First, Plaintiff is a life-long citizen and resident of England. It is well established that a foreign plaintiff's choice of forum receives less deference than the choice of a domestic plaintiff. E.g., Piper Aircraft Co. v. Reno, 454 U.S. 235, 256 (1981); Murray v. BBC, 81 F.3d 287, 290 (2d Cir. 1996). Second, and more importantly, Plaintiff and her attorneys have made public statements that they have brought this action as a "test case" for English smokers to recover from tobacco companies and to reap the large awards of money damages that American plaintiffs have secured. (Care Decl. at ¶ 6). Indeed, the newspaper articles appended to the Declaration of Alan Care, Plaintiff's English counsel, indicate that Mr. Care advertised for an "ideal plaintiff" to bring his test case and was then contacted by Plaintiff and Decedent. The public-statements by Plaintiff and her counsel leave little doubt: but that this case was brought in this forum in order to gain a tactical advantage. Thus, in the face of Plaintiff's forum shopping, the Court affords Plaintiff's forum choice very little deference.

 B. England as an Adequate Alternative Forum

  An alternative forum generally is adequate if "(1) the defendants are subject: to service of process there; and (2) the forum permits litigation of the subject matter of the dispute." Bank of Credit and Commerce Int'l Overseas Ltd. v. state Bank Page 5 of Pakistan, 273 F.3d 241, 246 (2d Cir. 2001) (internal quotation marks and citation omitted). Here, Defendants have agreed to accept service in England for this action, (Def. Mem. at 1), and there is no dispute that England permits the litigation of the instant claims. Therefore, England is an adequate alternative forum.

  Plaintiff, however, maintains that England is not an adequate alternative forum because (1) the English legal system requires an unsuccessful litigant to pay for her opponent's attorney's fees and costs; (2) the English legal system does not allow for the same contingency fee arrangement allowed in the American system; and (3) she has been unable to find an attorney to bring her claim in an English Court.*fn2 Plaintiff maintains that the inadequacies of the English legal system, as well as the fact that she was unable to find a personal injury attorney, should lead this Court to conclude that England is not an adequate alternative forum. In support of this argument, Page 6 Plaintiff relies on a footnote in Piper Aircraft, which states that:
Ordinarily, [the alternative forum] requirement will be satisfied when the defendant" is amenable to process' in the other jurisdiction. In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute.
Piper, 454 U.S. at 255.

  The "rare circumstances" exception to the alternative forum rule appears, by its terms, to be confined to an inquiry into whether the remedy available in the alternative jurisdiction is satisfactory. Plaintiff's complaints regarding contingency fees and the requirement that a losing party pay her opponent's fees do not concern the adequacy of available remedies. Moreover, the Piper Court specifically noted that "unlike most foreign jurisdictions, American courts allow contingent attorney's fees, and do not tax losing parties with their opponents' attorney's fees" as reasons why American courts are "already extremely attractive to foreign plaintiffs." Piper, 454 U.S. at 252 n.18. It is illogical to conclude that the Piper Court meant to exclude as alternative forums all jurisdictions that do not include those features which make American courts attractive to foreign Page 7 plaintiffs.

  In addition, the Second Circuit has already rejected one of Plaintiff's arguments — that financial hardships facing a plaintiff in an alternative forum as a result of the absence of contingent fee arrangements are sufficient to deem a forum unavailable. The Second Circuit explained that "to do otherwise would render the financial burden on a plaintiff the determinative factor, [and] [s]uch a result would ignore the Supreme Court's admonition that if central emphasis [is] placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable." Murray v. BBC, 81 F.3d 287, 292 (2d Cir. 1996) (internal quotation marks and citations omitted). This analysis is equally applicable to Plaintiff's complaint that she will have to pay the Defendant's attorney's fees and costs if she sues in England and is unsuccessful. Cf. Kilvert v. Tambrands Inc., 906 F. Supp. 790, 797 (S.D.N.Y. 1995).

  Plaintiff argues that her case is distinguishable from Murray "because her financial hardship or inability to afford a retainer fee is not the main reason she is unable to pursue her claim in England. Rather, the true barrier is that no personal injury practitioner is willing to file this case." (Pl. Mem. at 10). This Court need not reach the issue of whether the inability to find counsel willing to bring a specific lawsuit is Page 8 relevant in determining whether an alternative forum is adequate because, as discussed below, the Court does not find that Plaintiff has made a sufficient showing that she is unable to find counsel to bring this suit in England. However, the Court is doubtful that such an argument would prevail. Plaintiff's argument that she has been unable to find a lawyer to bring her case is essentially derivative of her contingency fee argument.*fn3 See Murray v. BBC, 81 F.3d at 292.

 C. Private Interest Factors

  The relevant private interest factors include: (a) ease of access to evidence; (b) the availability of compulsory process for the attendance of unwilling witnesses; (c) the cost of willing witnesses' attendance; (d) if relevant, the possibility of a view of premises; and (e) all other factors that might make the trial quicker or less expensive. Gulf Oil, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.