The opinion of the court was delivered by: John T. Curtin United States District Judge
In this action, plaintiffs seek damages for personal injuries suffered by plaintiff James Emslie while he was a passenger in an all-terrain vehicle manufactured by defendant Recreative Industries, Inc. ("RII"). The complaint sets forth six causes of action against RII and defendant Borg-Warner Automotive, Inc. ("Borg Warner"), for negligence, breach of warranty, strict liability, and a derivative cause of action for loss of consortium on behalf of plaintiff Lisa Ann Emslie. There are presently three motions before the court: RII's motion to dismiss on the grounds of forum non conveniens (Item 14), plaintiff's motion to amend the complaint (Item 37), and Borg Warner's motion for summary judgment (Item 41).
According to the complaint, defendant RII is a New York corporation with a place of business in Buffalo, New York. Item 1, ¶ 3. RII is the manufacturer of an all-terrain vehicle known as the "Max II." Id., ¶ 6. Defendant Borg Warner, a Delaware corporation doing business in the Western District of New York, is alleged to be the manufacturer of the vehicle's transmission. Id., ¶¶ 4, 8. On June 9, 2005, in Bristol, England, plaintiff James Emslie was injured while riding as a passenger on the vehicle, which was being driven by Adam Reeves. Plaintiffs allege that the vehicle "suddenly and without warning overturned and rolled repeatedly end over end." Item 1, ¶ 10.
Plaintiffs brought this action in the Western District of New York on the basis of diversity jurisdiction. 28 U.S.C. § 1332. RII filed an answer to the complaint on June 30, 2008. Item 4. Borg Warner filed its answer on July 2, 2008, (Item 5), and interposed a cross-claim against RII. On September 19, 2008, RII filed a motion to dismiss for forum non conveniens. Item 14. In support of the motion, RII submitted an affidavit from Adrian Bever, a British solicitor. Mr. Bever examined the complaint and stated that the law in England and Wales recognizes claims for negligence, breach of warranty, and strict products liability. He also stated that in England and Wales, "the injured party's spouse would not usually bring a separate claim for damages in his or her own right unless he/she had personally sustained physical injury or psychological harm as a consequence" of the accident. Item 14, Att. 2, ¶ 7. RII also submitted an affidavit from Jari Wallach, President of RII. Mr. Wallach stated that RII sold two Max II-500T all-terrain vehicles to Westland Special Vehicles, an English entity, on March 20, 2001. Item 14, Att. 3, ¶ 4. It was Mr. Wallach's understanding that the vehicles were used on a game show and underwent modifications prior to being shipped to England. Id., ¶ 5. Mr. Wallach stated that to properly defend the action, it should be litigated in England and that RII would waive any jurisdictional or statute of limitations defenses and concede that it is amenable to service of process in England. RII would also provide any relevant documents and make a representative available to testify in England. Id., ¶¶ 15-18.
Plaintiffs filed a response in opposition to the motion on October 24, 2008, including a memorandum of law (Item 17) and attorneys' affidavits. Items 19-21. Frank Lefevre, a Scottish solicitor, stated that if the case were to proceed in Scotland, neither defendant is registered to do business in Scotland and would not be amenable to suit in Scotland. Item 19, ¶ 3. He also stated that plaintiffs' claims would be subject to a statute of limitations defense. Id., ¶ 4. Additionally, the right to a jury trial in Scotland is subject to the discretion of the court and, despite any agreement of the parties, the case would be heard by a judge if the judge determines that the case is too complex for a jury. Id., ¶ 5. Mr. Lefevre also stated that witnesses and documentary evidence from persons outside the jurisdiction of the Scottish court can only be compelled by way of Letters of Request under the Hague Convention. Thus, Mr. Lefevre stated, there is no guarantee that such witness testimony or documentary evidence would be available in a trial of this action in Scotland. Id., ¶¶ 6-7. Mr. Lefevre also stated that a spouse or partner has no right of claim in Scotland against a defendant. Id., ¶ 8. Finally, Mr. Lefevre stated that the costs of pursuing the action in Scotland may be prohibitive, as the Scottish rule provides that expenses are normally awarded against the unsuccessful party. Id., ¶ 10.
Additionally, plaintiffs submitted an affidavit from Charles D. Cole, an attorney licensed to practice in New York and a solicitor in England and Wales. Item 20. Mr. Cole stated that neither RII nor Borg Warner has a place of business or other presence in the United Kingdom, and thus neither defendant would be amenable to suit in England. Id., ¶¶ 4-5. English law does not recognize a claim for loss of consortium on behalf of the spouse of an injured party, although the injured spouse may recover the reasonable costs of services provided by his or her spouse. Id., ¶ 7. Mr. Cole stated that the sources of proof are located in the United States, where the vehicle was manufactured; in Scotland, where plaintiffs reside; and in England, where the accident occurred. English procedural rules will economically hamper the parties' access to their adversaries' documents and witnesses. Id., ¶ 10. Mr. Cole also stated that a solicitor may not bring a claim in an English court and be paid a percentage of the recovery, and the "English Rule" exposes the unsuccessful party to liability for the fees and expenses of the litigation. Id., ¶ 12.
Mr. Cole further stated that English procedural law does not provide for broad document discovery as is allowed under the Federal Rules of Civil Procedure. Item 20, ¶ 14. Likewise, depositions of an investigative character, as are allowed under the Federal Rules, would likely not be allowed under English law. As such, Mr. Cole opined that the burden of obtaining evidence from England to use in a trial in the United States or in England would be the same for both parties. Id., ¶ 22. Mr. Cole stated that it would be difficult and expensive for a litigant in an English court to obtain testimony from an unwilling witness under the Hague Convention procedures. Id., ¶ 26.
Counsel for Borg Warner filed a declaration in opposition to the motion to dismiss (Item 23). In it, he stated that Borg Warner would not consent to jurisdiction in England or Scotland and would not agree to waive any statute of limitations defenses. Id., ¶ 2. Additionally, Borg Warner seeks to have its cross-claim against RII litigated in the United States. Id., ¶ 5.
RII filed a reply on October 31, 2008. Item 24. It submitted a transcript of the deposition of plaintiff James Emslie in further support of the motion to dismiss. In his deposition, Mr. Emslie stated that at the time of the accident, the ATV was being driven by Adam Reeves. Mr. Emslie could not see Mr. Reeves engage the gear controls, could not observe his behavior, and did not hear him say anything. Thus, RII argues, the testimony of Mr. Reeves, a non-party witness, is critical to the defense of the action.
Oral argument on the motion to dismiss for forum non conveniens was heard on September 14, 2009. The court reserved decision. Thereafter, following the exchange of discovery, plaintiff filed a motion for permission to file and serve an amended complaint (Item 37). Additionally, Borg Warner filed a motion for summary judgment dismissing the complaint (Item 41).
In support of the motion for summary judgment, Borg Warner submitted the testimony of Jari Wallach, President of RII. Mr. Wallach testified at an examination before trial that RII manufactures the Max II all-terrain vehicle (Item 41, Exh. A, p. 6, "Wallach Dep."). An affiliated corporation, Skid Steer, manufactures transmissions at the RII location using RII employees. Id., pp. 6-7. Mr. Wallach stated that Skid Steer manufactured the transmission that was in the vehicle in which plaintiff was injured. Id., p. 67. He further testified that Borg Warner originally manufactured the transmission, but in 1974 or 1975, RII and Hustler Corporation bought the design, manufacturing tools, and inventory in order to build the transmissions. Id., 68. They formed the Skid Steer Corporation, which is still co-owned by RII and Hustler, and manufactures the transmissions used in the Max II. Id., p. 69.
Prior to 1975, RII bought its transmissions from Borg Warner. Wallach Dep., p. 105. In June of 1975, Borg Warner and RII executed a letter of intent to the effect that RII would purchase all rights, title, and interest to the T20 transmission, including tools, dies, jigs, patents, gauges, test equipment, patterns, design, fixtures, and inventory used in the manufacture of the transmissions. Id., pp. 106-07; Item 41, Exh. B. RII and Hustler stated they would form a new company, Skid Steer, to purchase the transmission business from Borg Warner. Wallach Dep., p. 107. In December 1975, Skid Steer Corporation entered into a formal agreement with Borg Warner to purchase the T20 transmission operation. Id., pp. 107-08; Item 41, Exh. C. Mr. Wallach testified that over the years, there have been changes in the bearings, ...