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
SUPPLEMENTAL REPORT AND RECOMMENDATION
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attention to the Eleventh Circuit's unpublished decision in Fantome.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
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.
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,
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
FILING OF OBJECTIONS TO THIS REPORT AND
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
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).
© 1992-2004 VersusLaw Inc.