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United States District Court, S.D. New York

January 23, 2004.

HELGA VARNELO, as Personal Representative of the Estate of STANISLAV VARNELO, Deceased, Plaintiff, -against- EASTWIND TRANSPORT, LTD., CHARM NAVIGATION, LTD. & MAYFLOWER SHIP MANAGEMENT CORP., Defendants

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


Judge Wood on January 20, 2004 re-referred this case to me to consider the effect, if any, of the parties' subsequent submissions to her on my February 3, 2003 Report and Recommendation, Varnelo v. Eastwind Transport. Ltd., 02 Civ. 2084, 2003 WL 230741 (S.D.N.Y. Feb. 3, 2003) (Peck, M.J.), familiarity with which is assumed. They do not. I adhere to my prior Report and Recommendation.

1. By letter dated May 2, 2003, Varnelo's counsel called the Court's attention to the Eleventh Circuit's unpublished decision in Fantome. S.A. v. Frederick, No. 02-10090, 58 Fed. Appx. 835, 2003 WL 215812 (11th Cir. Jan 24, 2003). The Eleventh Circuit in Fantome determined that Page 2 since the Jones Act applied, the District Court's forum non conveniens dismissal was erroneous. (See slip op. at 13.) That analysis, however, is contrary to Second Circuit precedent which I discussed in my original Report and Recommendation:

As a threshold matter, plaintiff contends that the Jones Act governs this maritime action, and that the Court therefore has no choice but to deny the forum non conveniens motion. (Dkt. No. 16: Pl. Br. at 12-14.) To the contrary, and as plaintiff's counsel Edelman well knows, the Second Circuit has squarely held that an action may be dismissed on forum non conveniens grounds even if the Jones Act applies. See Cruz v. Maritime Co. of Philippines, 702 F.2d 47, 48 (2d Cir. 1983) (per curiam) ("maritime choice of law principles are not involved in a forum non conveniens analysis and . . . the district court's discussion on the subject was therefore unnecessary"); see also Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 153-54, 158-59 (2d Cir.) (en banc) (The Second Circuit "consistently has applied the Gilbert standard in reviewing dismissals on the grounds of forum non conveniens in admiralty cases. . . . [I]t is in the field of admiralty that our federal courts have applied the doctrine of forum non conveniens most flexibly and over the longest period of time . . . almost 180 years."), cert. denied, 449 U.S. 890, 101 S.Ct. 248 (1980).
As have all other judges in this District to whom plaintiff's counsel, Mr. Edelman, made the argument, this Court also declines plaintiff's counsel's invitation to ignore Cruz. See, e.g., Ioannides v. Marika Mar. Corp., 928 F. Supp. 374, 377 & n.5 (S.D.N.Y. 1996) ("Plaintiffs invite this Court to `reconsider' Cruz. It may not do so. Plaintiffs' argument would be addressed more properly to the Court of Appeals.") (plaintiff's counsel in Ioannides was Paul Edelman, counsel for plaintiff Varnelo); Tsangaris v. Elite. Inc., 92 Civ. 7855, 1993 WL 267425 at *7 (S.D.N.Y. July 9, 1993) ("The Second Circuit has concluded that it will follow the Gilbert standard in all forum non conveniens motions. Even in cases brought under the Jones Act, this Court may properly apply the Gilbert forum non conveniens analysis.") (citations, including to Cruz, omitted) (Edelman was Tsangaris' counsel); Gazis v. John S. Latsis (USA) Inc., 729 F. Supp. 979, 985 (S.D.N.Y. 1990) (following Cruz, "a district court may dismiss a case on forum non conveniens grounds without first making a choice of law determination") (Edelman represented Gazis); Doufexis v. Nagos S.S., Inc., 583 F. Supp. 1132, 1133 (S.D.N.Y. 1983) (FNC dismissal in Jones Act case permitted under Cruz) (Edelman was Doufexis' counsel).
Varnelo v. Eastwind Transport. Ltd., 2003 WL 230741 at *6-7.

  2. After my Report and Recommendation, Judge Martin similarly dismissed a case — also against Eastwind Transport — on forum non conveniens grounds in favor of a Russian forum. Page 3 See Tarasevich v. Eastwind Transport Ltd., 02 Civ. 1806, 2003 WL 21692759 (S.D.N.Y. July 21, 2003) (Martin, D. J.). In addition, in an opinion citing my Varnelo opinion, Judge Koeltl dismissed a case on forum non conveniens grounds in favor of litigation in Russia. See Base Metal Trading S.A. v. Russian Aluminum, 253 F. Supp.2d 681 (S.D.N.Y. 2003) (Koeltl, D.J.).

  3. Finally, plaintiffs counsel argues that, after my Report and Recommendation, Varnelo tried to sue defendants in a court in Russia, but the Russian court rejected the suit. The problem is that the suit was brought without notice to defendants, and decision rendered ex parte, and there is no evidence that Varnelo informed the Russian judge that defendants all had consented to suit in Russia. It appears to this Judge that in an effort to force this Court to keep jurisdiction over a case with no relation at all to the United States (let alone New York), plaintiff purposely brought suit in Russia in a way designed to have that court reject the suit. (The Court does not know if Russian courts entertain the equivalent of a declaratory judgment action, but if they do, it might make sense for Eastwind, et al. to sue Mrs. Varnelo in Russia. If defendants choose to do so, the Court directs Varnelo and her counsel to cooperate in the commencement of that suit, so it can be determined if suit can be brought in Russia.) The Court finds defendants' responses as to the meaninglessness of the Russian decision to be persuasive. (See 8/5/03 Arralde Aff. ¶¶ 3-10.)


  For the reasons set forth above, I adhere to my February 3, 2003 Report and Recommendation. Page 4


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992): Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989): Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988): McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).


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