The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Carlos Seales commenced this action against Panamanian Aviation Company, Ltd., also known as Copa Airline ("COPA"), and "Jane Does" and "John Does" 1 through 10, unidentified COPA employees, on July 12, 2007. Plaintiff brings claims of: (1) willful and/or negligent misrepresentation, (2) gross negligence, (3) willful misconduct, and (4) intentional infliction of emotional distress. Plaintiff seeks damages, alleging that based on the actions and representations of COPA and its employees, plaintiff, following a flight on COPA from Panama City to Jamaica, was arrested at Norman Manley Airport, Jamaica, detained eighteen days, and prohibited from leaving Jamaica for several months while criminal charges were pending against him. Presently before the Court is defendant COPA's motion to dismiss the claims against it for lack of subject matter jurisdiction, or in the alternative, on forum non conveniens grounds.*fn1 For the reasons set forth below, defendant COPA's motion is granted.
The following facts are drawn from plaintiff's Amended Complaint and the affirmations, affidavits and exhibits submitted in connection with these motions. See Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 158-59 (2d Cir. 1980) (en banc) ("[I]t is the well established practice . . . to decide [forum non conveniens] motions on affidavits"), cert. denied, 449 U.S. 890 (1980); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) ("In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court, as it did here, may refer to evidence outside the pleadings"). Disputes are noted.
Plaintiff was born in Panama and is a dual United States and Panamanian citizen. See Affirmation of Marguerite D. Peck dated June 27, 2008 ("Peck Aff."), Exs. A (Deposition of Carlos A. Seales dated April, 17 2008 ("Seales Dep.")) at 12:19-21, F (copy of plaintiff's American passport), and G (copy of plaintiff's Panamanian passport); Affidavit of Carlos A. Seales dated July 22, 2008 ("Pl.'s Aff.") ¶ 2. Plaintiff attended grammar and high school in Panama, but moved to the United States in 1975 and became an American citizen at some point between 1983 and 1987. Seales Dep. at 11:16-23, 12:16-24. From approximately 1976 to 1989, plaintiff served in the United States military, id. at 13:5-8, following which he was employed in New York by the East New York Development Corporation from 1989-92, id. at 15:12-16:8, and thereafter, from 1996-99, by the United States Post Office. Id. at 16:9-14; Pl.'s Aff. ¶ 5.
As a result of post traumatic stress disorder arising from plaintiff's experiences in the military, plaintiff was discharged from his employment at the Post Office and thereafter received disability benefits from the United States Department of Veteran Administration, the Social Security Administration, and the Civil Service. Seales Dep. at 18:8-17; Pl.'s Aff. ¶ 6. These benefits are deposited into plaintiff's bank account in New York. Pl.'s Aff. ¶ 6; see also id. Ex. 4 (copy of first page of two of plaintiff's New York bank statements; no specific transactions reflected). Plaintiff also receives Medicare benefits and medical treatment in the United States. Id. ¶ 7; see also id.
Ex. 5 (copy of medicare card). Plaintiff is a registered voter in the State of New York. Id. ¶ 8; see also id. Ex. 6 (copy of undated "NYC Vote" card). Plaintiff's New York driver's license expired in 2005, and plaintiff states that he did not renew it because he no longer owns a car or drives in New York. Id. ¶ 9; see also id. Ex. 7 (copy of expired driver's licence).
Plaintiff alleges that he currently resides at 318 Beach 86th Street in Rockaway Park, New York, with his sister, nephews, and nieces. Id. ¶ 3; Seales Dep. at 5:5-14. The address listed on plaintiff's expired driver's license is 135 28th St. in Brooklyn, New York, where plaintiff's former wife and some of his children live, and where plaintiff receives some mail. Pl.'s Aff. ¶¶ 4, 9, see also id. Ex. 2 (copy of mail dated May 2008 directed to plaintiff at the 135 28th St. address, including cell phone bill in plaintiff's name, which plaintiff testified was for his daughter, see Seales Dep. at 54:3-6). Plaintiff last resided at the 135 28th St. address in 1998. Seales Dep. at 36:6-8.
Plaintiff is currently unemployed, id. at 8:6-8, but serves as a consultant to the International Rastafarian Organization, which, according to plaintiff, requires frequent travel to Jamaica and Panama. Pl.'s Aff. ¶ 10. Despite his frequent travel, plaintiff states that he never intended to abandon and has not abandoned his residence and domicile in the State of New York. Id. Plaintiff is required to obtain a visa at the airport each time he enters Jamaica, and his stay in Jamaica is limited to between 10 and 90 days on each visit. Id. ¶ 12; Seales Dep. at 74:5-8. Other than from October 2005 to April 2006, when, as discussed more fully below, plaintiff was prohibited from leaving Jamaica due to pending criminal charges, plaintiff states that he has not overstayed his visa. Id.
According to defendant COPA, however, plaintiff spends most of his time in Jamaica or Panama and is not currently a resident or domiciliary of the State of New York, nor was he at the time this action was commenced. Peck Aff. ¶ 4. Plaintiff's passports, which were produced to defendants on June 6, 2008, reveal that plaintiff spent approximately nine months of the year 2007 in Jamaica, and eight months of the year 2006 in Panama.
Id. ¶¶ 29-30. In its moving papers, defendant COPA argues that the passports show that plaintiff was in the United States for only one week in 2006 and six weeks in 2007, and that plaintiff was not in the Unites States when this action was commenced on July 17, 2007. Def.'s Memo. at 4-5. Other than noting that plaintiff traveled approximately 11 times between the United States, Jamaica, Chile, and Panama in 2006, and approximately ten times between the same countries in 2007, see Pl.'s Aff. ¶ 18, plaintiff does not dispute defendant COPA's reading of his passports.*fn2
Defendant COPA also points to a written statement plaintiff made to the Jamaican police in October 2005, in which he affirmed: "I reside at 3 MAJAQUAL, ARRAIJAN PANAMA. I HAVE BEEN RESIDING AT THIS ADDRESS SINCE 1999. PREVIOUSLY I resided in Brooklyn New York." Peck Aff. Ex. E (copy of statement) (emphasis in original); see also Seales Dep. at 126:10-128:18 (acknowledging authenticity of statement).*fn3 In addition, as previously noted by this Court, in an application submitted between October 2005 and April 2006 in connection with criminal charges then pending against plaintiff, plaintiff's attorney in Jamaica stated that "[plaintiff] intended to obtain advice . . . as to the correct procedure to take his licenced firearm to Jamaica where he was also living with his wife, Iffya, his daughter of 8 months (then) and his wife's three (3) children," and that "[plaintiff] was in the process of gradually moving to Jamaica." Seales v. Panamanian Aviation Co. Ltd., No. CV-07-2901, 2008 WL 544705, at *1 n.2 (E.D.N.Y. Feb. 26, 2008) (emphasis added).
At some point during the course of plaintiff's service to the International Rastafarian Organization, plaintiff met and fell in love with Iffiya Homes, a Jamaican citizen and resident. Pl.'s Aff. ¶ 13. On March 8, 2005, the couple's first child was born in Panama. Seales Dep. at 24:16-25:7. Thereafter, the family remained in Panama for approximately three months, and then traveled to and remained in Jamaica for about three months. Id. at 25:8-18. Plaintiff and Ms. Holmes were married in a religious ceremony in April 2005, although plaintiff's divorce from his former wife, who resides in New York, did not become final until March 6, 2008. Id. at 22:8-20; Pl.'s Aff. ¶ 4. Plaintiff does not currently maintain a residence in Panama, Seales Dep. at 10:13-16, but did maintain a residence there as of October 2005. Id. at 10:17-23. Plaintiff has a bank account in Panama, although he has not used it for six years. Id. at 53:4-9; Pl.'s Aff. ¶ 15.
When plaintiff is in Jamaica, he stays at 5 Drum Lane in Bog Walk, Saint Catherine, where his current wife and their two children now reside.*fn4 Seales Dep. at 6:25-7:12; 23:6-18. Plaintiff has stayed at this address intermittently for approximately the last four years. Id. at 7:9-25. Plaintiff maintains a joint bank account with his current wife in Jamaica, id. at 53:10-27, receives treatment from a psychologist there, id. at 21:2-13, and receives mail at a Bog Walk, Saint Catherine post office box, which his wife also uses. Id. at 54:7-13; Pl.'s Aff. ¶ 15. Plaintiff testified that in 2007, he made two or three trips to Jamaica to stay with his wife and children, and that each trip lasted approximately two or three months. Seales Dep. at 31:3-22. Plaintiff states, however, that he has always intended to bring his children to the United States, that he has obtained American citizenship for one of the children, and that he is working on obtaining citizenship for the other child.
Pl.'s Aff. ¶ 14; see also id. Ex. 8 (copy of older child's United States passport).
Defendant COPA is a business corporation organized and existing under the laws of Panama, with its principal place of business located in Panama. Am. Compl. ¶ 2. Defendants "John Doe" and "Jane Doe" 1-10 are unknown employees of defendant COPA. Id. Defendant COPA is a provider of international airline passenger and cargo services offering flights in over 21 countries in North, Central and South America. Id. ¶ 8. It maintains an office and employs staff in the State of New York, from which it derives substantial revenue and where it maintains its principal presence in the United States. Id. Defendant COPA is a fully owned subsidiary of Copa Holding SA, which is listed on the New York Stock Exchange. Id.
Events Leading to This Action
Prior to one of plaintiff's trips from Panama to Jamaica, plaintiff contacted defendant COPA to inquire whether he could legally take his firearm, licensed in Panama, into Jamaica and, if so, what the relevant procedures were. Id. ¶ 9. Plaintiff alleges that he was informed by COPA employees that he could legally take his firearm into Jamaica if he declared his intention to transport the firearm at check-in, provided evidence and verification of the firearm license, had the firearm inventoried and handed over to the defendants for transportation, and upon arrival in Jamaica, applied for and obtained a permit from the relevant Jamaican authority to re-possess his firearm. Id. ¶ 10.
On October 3, 2005, plaintiff boarded a COPA flight from Panama to Jamaica. Id. ¶ 11. He declared his firearm and produced his license. Id. ¶ 12. COPA employees accepted the firearm and provided plaintiff with his boarding pass and baggage claim receipt. Id. Upon boarding the aircraft, plaintiff was summoned to the cockpit by the pilot, who presented the firearm case to plaintiff. Id. ¶ 13. Plaintiff opened the case and the pilot separated the ammunition from the firearm, inventoried the firearm and the ammunition, issued plaintiff with a receipt, and took possession of the firearm. Id. The pilot allegedly informed plaintiff that defendants would deliver the firearm to the proper Jamaican authority upon arrival and advised plaintiff that he could claim the ammunition from Jamaican customs with the receipt. Id. ¶ 14.
When plaintiff's flight landed in Jamaica, plaintiff went to claim his regular baggage and saw his firearm lying next to the conveyor belt, unattended. Id. ¶ 15. He retrieved the firearm and took it directly to Jamaican customs. Id. ¶ 16. He informed Customs Officer Delroy Allen of the circumstances and his desire to obtain permit to bring the firearm into Jamaica. Customs officers tried to confirm plaintiff's account with the COPA pilot, but the aircraft was already on its return trip to Panama. Id.
Plaintiff was arrested and detained by the Jamaican authorities for (a) illegal possession of a firearm, (b) illegal possession of ammunition, (c) importing a firearm without a license, and (d) breach of the Customs Act. The offenses carry a penalty of life imprisonment. Id. ¶ 17.
Plaintiff was subsequently charged with illegal possession of a firearm, illegal possession of ammunition, and illegal importation of firearms and ammunition in the High Court Division of the Gun Court for the Island of Jamaica. Id. ¶ 18. At a hearing of the charges against plaintiff on October 5, 2005, the presiding Judge requested a written statement from COPA attesting to the fact that plaintiff declared his firearm and that it was transported with ...