United States District Court, S.D. New York
February 3, 2005.
RAPHAEL BIGIO, BAHIA BIGIO, FERIAL SALMA BIGIO, and B. BIGIO & CO., Plaintiffs,
THE COCA-COLA COMPANY and THE COCA-COLA EXPORT CORPORATION, Defendants.
The opinion of the court was delivered by: BARBARA JONES, District Judge
This case arises out of a seizure and confiscation of foreign
property allegedly in violation of New York State law. The
Plaintiffs, Raphael Bigio, Bahia Bigio, Ferial Salma Bigio and B.
Bigio & Co. (collectively, "the Bigios") seek damages from the
Defendants, The Coca-Cola Company and The Coca-Cola Export
Corporation (collectively, "Coca-Cola"), for their conduct in
connection with the nationalization of the Bigios' property by
the Egyptian government in the early 1960s. Specifically,
Plaintiffs seek damages for conversion. Defendants move to
dismiss the Complaint on the grounds of: (1) international
comity; (2) forum non conveniens; (3) failure to state a claim;
(4) failure to join two indispensable parties; (5) and that the
claims are time barred.
The factual history of this action is set forth at length in a
previous district court opinion, Bigio v. Coca-Cola Co., 1998
U.S. Dist. LEXIS 8295 (S.D.N.Y. June 5, 1998), dismissing
Plaintiffs' complaint because Plaintiffs had not satisfied the
prerequisites for jurisdiction under the Alien Tort Claims Act,
and because the act of state doctrine barred the court's exercise
of jurisdiction despite the parties' diversity of citizenship.
The Court of Appeals subsequently affirmed that Plaintiffs had no
claims under the Alien Tort Claims Act, but reversed the District
Court's holding that the act of state doctrine barred the claims.
Finding diversity jurisdiction, the Circuit Court remanded for
consideration of whether the principle of international comity
barred consideration of the case. Bigio v. Coca-Cola Co.,
239 F.3d 440 (2d Cir. 2001). Familiarity with those opinions is
assumed, and only a brief summary of the facts appears here.
Plaintiffs Raphael Bigio, his sister Ferial Salma Bigio, and
their mother Bahia Bigio are citizens and residents of Canada.
Plaintiff B. Bigio & Co. is a company owned by the Bigio family,
organized in Egypt in the early 1930s. Defendants the Coca-Cola
Company and the Coca-Cola Export Company are incorporated in the
State of Delaware and headquartered in Atlanta, Georgia. The
Coca-Cola Export Company is a wholly owned subsidiary of the
The property that is the subject of this action consists of
land and factories located in Heliopolis, Egypt, a suburb of
Cairo. The Bigios contend that the Egyptian government under
President Gamal Abdel-Nasser sequestered and nationalized their
property in 1962 because they were Jewish. The Bigios left Egypt
in 1965 without having received compensation.
Once the Egyptian government seized Plaintiffs' property it
transferred ownership to the Misr Insurance Company ("Misr"), a
company wholly owned by the Egyptian government. Misr in turn
leased the property to the El-Nasr Bottling Company ("ENBC"),
another company wholly owned by the Egyptian government.
In 1977, after the death of President Nasser, the Egyptian
government apparently issued an edict revoking the contracts of
sale that had effected the transfer of the Bigios' property to
Misr. In 1979, purportedly pursuant to this edict, the Egyptian
Ministry of Finance issued Decision Number 335, which ordered
Misr to return the Bigios' property, along with any rental burden
and active occupants, or to forward to the Bigios the proceeds of
any sale of the property that might have occurred. However, Misr
did not return the property.
The Bigios brought suit in Egypt in 1980 against Misr, ENBC,
and various government agencies. Plaintiffs do not claim that
they have ever sued Coca-Cola in Egypt. Coca-Cola asserts that
the 1980 claims were dismissed for failure to prosecute. The
Plaintiffs do not dispute this. (Declaration of Ahmed Abou Ali,
August 19, 1997, Chart A.)
Coca-Cola began doing business with the Bigio family in 1938.
Coca-Cola leased land from the Bigios for its bottling plants and
gradually bought bottle caps and other marketing elements from
Bigio factories until the family was dispossessed in 1962. From
1967 to 1979 Coca-Cola was barred from doing business in Egypt
because it did business in Israel. After the peace treaty between
Egypt and Israel, Coca-Cola reentered the Egyptian market.
(Defendants' Answers to Interrogatories at 20.) In 1993,
Coca-Cola sought to invest in the privatization of ENBC, the
Egyptian beverage company.
In 1993, ENBC consisted of a number of distribution and
warehousing facilities throughout Egypt and thirteen bottling
plants, one of which was located on the Bigios' former property.
Two subsidiaries of Coca-Cola Export Company invested in ENBC and
currently own 42% of the company. (Defendants' Renewed Motion at
In February 1994, when Coca-Cola was seeking to buy ENBC,
Raphael Bigio contacted Coca-Cola to discuss the Bigios' claims
regarding the Heliopolis property. Correspondence and two
meetings between the Bigios and the company followed. In July
1995, Coca-Cola advised Mr. Bigio that it would not compensate
him. Coca-Cola asserts that its investigation prior to the
acquisition led it to conclude that ENBC, which leased the land
from Misr Insurance Company, had no liability to the Bigios.
The plaintiffs filed this lawsuit in the United States
District Court for the Southern District of New York on April 21,
1997, seeking compensatory and punitive damages for the
defendants' allegedly improper conduct in "converting plaintiffs'
assets." Their complaint alleged that Coca-Cola engaged in
wrongdoing by "acquiring the assets of ENBC, knowing that
plaintiffs had been deprived of their rights to the property
solely because of their religious faith."
Judge Martin, in his earlier district court opinion, held that
the act of state doctrine applied. The act of state doctrine is
an element of abstention doctrine, which refers to a district
court's decision not to exercise jurisdiction it has. The Second
Circuit examined the abstention issues and disagreed with Judge
Martin's holding on the act of state doctrine. Instead, they
remanded for this Court to determine whether another abstention
doctrine, international comity, applied. Bigio v. Coca-Cola
Co., 239 F.3d 440, 451-455 (2d Cir. 2000).
I. International Comity
International comity has been defined as "the recognition which
one nation allows within its territory to the legislative,
executive or judicial acts of another nation." Hilton v. Guyot,
159 U.S. 113, 164 (1895).
Under the doctrine of international comity, a court declines to
exercise jurisdiction it admittedly has and dismisses a complaint
in favor of a foreign forum. See Finanz AG Zurich v. Banco
Economico S.A., 192 F.3d 240, 245-46 (2d Cir. 1999). The
decision whether to dismiss a case on international comity
grounds lies within the discretion of the district court. See
id. at 246; Jota v. Texaco, Inc., 157 F.3d 153, 160 (2d Cir.
International comity is an affirmative defense; the party
asserting comity as grounds for dismissal bears the burden of
proof. United Feature Syndicate, Inc. v. Miller Features
Syndicate, Inc., 216 F.Supp. 2d 198, 212 (S.D.N.Y. 2002);
Allstate Life Ins. Co. v. Linter Group, Ltd., 994 F.2d 996, 999
(2d Cir. 1993).
As the Second Circuit noted, central to an ultimate
determination in this case is "the legal effect of the 1977 edict
and subsequent instructions issued by the Egyptian government
with respect to the Bigios' property." 239 F.3d at 454.
The Defendants meet their burden, demonstrating the need for
comity by using the seven-step test laid out by the Ninth Circuit
and endorsed by this Circuit. Timberlane Lumber Co. v. Bank of
America Nat'l Trust and Savings Assoc., 749 F.2d 1378 (9th
Cir. 1984); O.N.E. Shipping Ltd. v. Flota Mercante
Grancolombiana, S.A., 830 F.2d 449, 451 (2d Cir. 1987).
The first element of the Timberlane test asks the Court to
consider the degree of conflict with foreign law or policy. The
degree of conflict here is high. To find the Defendants liable
for trespass or conversion of the Bigios' property, this Court
would have to determine that the Egyptian governments acts in
sequestrating the land were wrongful in the first place, and a
government-owned company's refusal to return the property was
wrong subsequently. Misr, the state-owned company, presumably
believes it has a valid basis under Egyptian law for refusing to
abide by the 1977 edict that purported to repair the property to
the Bigios. Any adjudication by this Court in Plaintiffs' favor
would necessarily entail a determination that the Egyptian
government or a state-owned subsidiary, or both, acted contrary
to law. This would bring the Court into conflict with Egyptian
law and policy, and tips strongly in favor of a comity finding.
The remaining Timberlane factors also suggest that deference
to Egypt would be appropriate. They are: (2) the nationality of
the parties, which is Canadian in the plaintiffs' individual
cases, Egyptian in the case of the plaintiff corporation, and
American for the defendant corporations; (3) the extent to which
enforcement by either the U.S. or Egypt can be expected to
achieve compliance, which tips strongly in favor of Egypt given
that title to real property is at issue; (4) the relative
significance of the effects on the U.S. as compared with those in
Egypt, which also tips in favor of Egypt given that there are
almost no effects in the United States save the possibility of a
small effect on Coca-Cola's balance sheet; (5) and (6) the extent
to which there is explicit purpose to harm or effect American
commerce, and the foreseeability of such an effect, which is nil;
and (7) the relative importance to the violations charged of
conduct within the U.S. as compared with conduct in Egypt, which
also tips in favor of Egypt. Although Coca-Cola's decisions about
the Heliopolis property may have originated in the U.S., the
conduct that is of crucial importance the conduct of the
Egyptian government happened in Egypt.
In partially reversing the District Court, the Second Circuit
noted, "This lawsuit's connection to Egypt is . . . undeniably
strong. By contrast, the only connection between this lawsuit and
the United States . . . is the identity of the defendants as
United States corporations." 239 F.3d at 454. The Circuit also
instructed this Court to consider whether an adequate forum for
the claim exists in Egypt and whether the defendants are subject
to suit there. Notably, these questions overlap with the doctrine
of forum non conveniens, which will be addressed below.
A. Adequacy of the Forum
An adequate forum for the claim exists in Egypt. Long after
they had left Egypt, the Plaintiffs commenced litigation there
in 1980 and again in 1993. They now allege that continuing
anti-Semitism in Egypt makes it too dangerous for them to pursue
their action there, but the support they provide for that claim
The Plaintiffs cite an Egyptian newspaper article about this
litigation as proof that "the publicity in Egypt obviously makes
it life-threatening for the plaintiffs or their counsel to travel
to that country or to engage in a public trial in that country."
(Mot'n in Opp'n at 2.) The article, provided in full translation
by Defendants, is certainly anti-Semitic in tone. However,
nothing in its contents suggests that the Plaintiffs' safety
would be jeopardized by litigating in Egypt. Likewise, the news
articles cited by Plaintiffs regarding an anti-Semitic Egyptian
television show do not demonstrate that Jews litigating in
Egyptian courts are in physical danger, nor that the government
has endorsed these racist attitudes.
In fact, the article Plaintiffs cite as proof of danger refers
to thousands of other pending lawsuits like theirs. Although the
Bigios claim that their numerous attempts to litigate their
claims in Egypt comprise a "record of futility," they do not cite
any cause for that futility beyond their own inaction. (Opp'n
Memo at 13.)
B. Jurisdiction over defendant
The other key ingredient to the availability of a foreign forum
is the ability to reach the defendant in that forum. In this case
the Defendants have stipulated to jurisdiction in Egypt.
The Second Circuit found that this Court can decide the
controversy, but remanded for consideration of whether it
should. 239 F.3d at 454. This Court finds that after weighing
the factors of an international comity analysis, the case is
In the alternative, it is abundantly clear that a forum
analysis strongly indicates that the case would be more properly
prosecuted in Egypt. Both parties have briefed the forum non
conveniens issue, and the Court will address it now.*fn1
II. Forum Non Conveniens
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).
There is ordinarily a strong presumption in favor of the
plaintiff's choice of forum. Piper Aircraft Co. v. Reyno,
454 U.S. 235, 255 (1981). A foreign plaintiff seeking to litigate in
American court is generally given less deference, because the
presumption of convenience is diminished. Id. Still, "some
weight must still be given to a foreign plaintiff's choice of
forum." Murray v. British Broadcasting Corp., 81 F.3d 287, 290
(2d Cir. 1996). The Plaintiffs are neither citizens nor
residents of the United States.
In a forum non conveniens analysis, the court must first
determine whether an adequate alternative forum exists. Carey v.
Bayerische Hypo-Und Vereinsbank AG, 370 F.3d 234, 237 (2d Cir.
2004). If one does, the court then evaluates relevant private and
public interest factors to determine if the balance of
convenience tilts strongly in favor of dismissal. Id.; see
also Piper Aircraft, 454 U.S. at 254; Gulf Oil Corp. v.
Gilbert, 339 U.S. 501, 508-09, (1947).
A. Egypt 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
of Pakistan, 273 F.3d 241, 246 (2d Cir. 2001) (internal citation
omitted). Here, Defendants have agreed to accept service in Egypt
for this action, (Def. Mem. at 1), and there is no dispute that
Egypt permits the litigation of the instant claims.
As discussed above, Plaintiffs claim that their lives would be
at risk if they litigated the case in Egypt, but do not provide
support enough to convince the Court that this is more than legal
theatrics. While this Circuit has recognized that the emotional
burden of litigating abroad should be taken into account in a
forum non conveniens analysis, the leading case on
this factor emphasizes the court's interest in honoring a
plaintiff's desire to litigate at home. Guidi v.
Inter-Continental Hotels Corp., 224 F.3d 142, 146 (2d Cir. 2000)
(". . . a plaintiff's choice of forum is entitled to greater
deference when the plaintiff has chosen the home forum.")
Not only are the Bigios not suing at home, the forum that they
claim is emotionally untenable is one in which they have
litigated multiple claims since their dispossession. Absent the
presumption of convenience created when a plaintiff sues at home,
and given the Bigios' willingness to litigate in Egypt over the
past decades, the Court finds nothing inadequate about the
Egyptian courts as a forum for their claim.
B. 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, 330 U.S. at 508.
Here, the private interests tip in favor of litigating this
action in Egypt. The essence of the instant action is what
rights, if any, the Bigios have to real property located in
Egypt. As two earlier courts have noted, evaluating Plaintiffs'
cause of action against Coca-Cola requires first understanding
what actions the Egyptian government took regarding the
Plaintiffs' property in the early 1960's and late 1970's.
Bigio, 1998 U.S. Dist. LEXIS 8295, *10-11; Bigio,
239 F.3d 440, 453. Although Plaintiffs assert that materials relevant to
Coca-Cola's decision to invest in Egypt are located in the United
States, the company's liability, if any, cannot be determined
without first addressing the status of Plaintiffs' underlying
The relevant evidence the documents, the non-party witnesses,
and the property itself are in Egypt. The documents are
presumably in Arabic; many of the witnesses may not speak
English. Moreover, Egyptian law as it existed in 1962 and 1977
will be crucial to the case, and an Egyptian court is far better
equipped to interpret that law than this Court.
It is worth noting that almost nothing relevant occurred in the
United States, and nothing at all in the Southern District of New
York. Coca-Cola Export's parent company is headquartered in
Atlanta. Coca-Cola executives received and responded to Mr.
Raphael Bigio's claims there in 1994. That is the extent of this
action's connection to the United States; no connection to this
District is alleged.
C. Public Interest Factors
The relevant public interest factors to be weighed in a forum
non conveniens inquiry are (a) administrative difficulties
associated with court congestion; (b) the unfairness of imposing
jury duty on a community with no relation to the litigation; (c)
the local interest in having localized controversies decided at
home; and (d) avoiding difficult problems in conflict of laws and
the application of foreign law. Gulf Oil, 330 U.S. at 508-09.
Here, the public interest factors overwhelmingly favor Egypt as
the more appropriate forum.
Trying this case would require the diversion of resources from
other cases having more connection to this district. To allow
foreign nationals to bring such suits in this District (or
elsewhere in the federal courts) would place a burden on the
courts a burden that would not be justified in light of the de
minimis connection between Plaintiffs' loss of property that
occurred outside of the United States and this district. It is
undisputed that "this Court sits in one of the busiest districts
in the country is undeniable, making this one of the congested
centers of litigation referred to in [Gulf Oil]. The need to
guard our docket from disputes with little connection to this
forum is clear . . ." Doe v. Hyland Therapeutics Div.,
807 F.Supp. 1117, 1128 (S.D.N.Y. 1992).
In addition, "jury duty is a burden that ought not to be
imposed upon the people of a community which has no relation to
the litigation." Gulf Oil, 330 U.S. at 501-02.
Lastly, Egypt's interest in deciding this controversy is
significant. Not only is Egypt the country with the most
significant factual relationship to this litigation, but its
strong interest in deciding the subject matter of this
controversy is undeniable. As discussed above, the Bigios are not
the only family who may have lost property under Nasser's
government on account of their religion or ethnicity. Not only
are Egyptian courts better prepared to untangle the legal knot of
this case, they have a strong interest in maintaining whatever
precedent may already have developed on the matter. The intrusion
of a United States court could raise precisely the international
comity issues that concerned the Second Circuit.
Given that the doctrines of international comity and forum non
conveniens demand that the case be dismissed, the Court declines
to consider other claims made by defendants: failure to state a
claim, failure to join indispensable parties, and that the claims
The Clerk of the Court is directed to close the case.