12(b)(2) of the Federal Rules of Civil Procedure INTRODUCTION , 5:01-CV-0882 . MEMORANDUM DECISION AND ORDER vs. (NAM)(GJD) Constab Polymer-Chemie GmbH & Co. (n/k/a Constab Additive Polymers GmbH Constab Polymer-Chemie Defendant Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 1 of 26 1 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case Floor th GmbH & Co. KG) (Constab) moves this for dismissal of plaintiff’s based upon: of plaintiff’s complaint this Court for dismissal & Co. KG) (Constab) moves GmbH (1) lack of personal pursuant to Rule New York, New York 10119-3701 Attorney for Defendant & Co. Constab Polymer-Chemie GmbH Norman A. Mordue, Chief U.S. District Judge: with due process; or, in the alternative, (2) based upon Rule 12(b)(3) of the and failure to comply CONSTAB POLYMER-CHEMIE GmbH & CONSTAB POLYMER-CHEMIE SPEZIALITATENCHEMIE CO., and CIBA LAMPERTHEIM GmbH, ______APPEARANCES:Cozen & O’Connor1900 Market Street Philadelphia, Pennsylvania 19103 Attorney for Plaintiff Gibbons P.C.One Pennsylvania Plaza 37 OF COUNSEL: Douglas B. Fox, Esq. Crawford, Esq. W. Philip UNITED STATES DISTRICT COURT STATES DISTRICT UNITED OF NEW YORK DISTRICT NORTHERN ______INSURANCE COMPANY, GREAT NORTHERN Inc., Schoeller Technical Papers, as subrogee of Felix Papers, Inc., and Schoeller Technical NAM See Great ; or, in the alternative, (3) lack of alternative, (3) ; or, in the , No. 02-9199, Dkt. No. 54 (Sept. 19, , No. 02-9199, Dkt. No. 54 (Sept. ured by Constab and used in the photographic 2 (Dkt. No. 60) The plaintiff, Great Northern 60) The plaintiff, (Dkt. No. BACKGROUND forum non conveniens forum non , 01-CV-0882, Dkt. No. 43 (Sept. 16, 2002) (Memorandum-Decision , 01-CV-0882, Dkt. see also Great Northern Ins. Co. v. Constab see also Great Northern Ins. Co. Familiarity with the factual history in the case is assumed based on this Court’s previous based the case is assumed history in the factual with Familiarity principal place of corporation with its a German In February 1993, defendant Constab, the products shipped to Schoeller plants included Masterbatch Pursuant to the Agreement, Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 2 of 26 2 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case Federal Rules of Civil Procedure and Rules of Civil Procedure Federal jurisdiction due to a forum selection clause. selection clause. due to a forum jurisdiction (Dkt. No. 63, 64) . Northern) has opposed defendant’s (Great Insurance Company industry. The Masterbatch shipped to Schoeller-USA included a chemical known as Chimassorb chemical industry. The Masterbatch shipped to Schoeller-USA included a Memorandum-Decision and Order and the Summary Order of the Second Circuit. Order of the Second Circuit. and Order and the Summary Memorandum-Decision v. Constab Northern Ins. Co. and Order); Order). 2003) (Summary GmbH with Feliz Schoeller (“Agreement”) entered into a supply agreement business in Germany, was negotiated in corporation. The Agreement a German & Co. KD (Schoeller-Germany), its execution as Germany. It specifies the place of and is written entirely in German. Germany of Constab agreed to “regularly suppl[y] products for the production Pursuant to the Agreement, plants - including a plant located in Pulaski, New York. photo papers” to Schoeller-Germany Technical Papers, Inc. and is the parent corporation of Felix Schoeller Schoeller-Germany Schoeller-USA was in the Schoeller Technical Papers, Inc. (Schoeller-USA). At that time, located at 170 photographic papers with their business operations business of manufacturing County Route 2A in Pulaski, New York. manufact UV 1032 LD (“Masterbatch”), a chemical NAM

lied and/or distributed to Constab by Ciba distributed to lied and/or of the “customer(s)” that allegedly rejected the of the “customer(s)” om Constab was the cause of the defects. As a om r-USA in New York. After delivery, an invoice r-USA in New York. ox Aff., Ex.A) (Dkt. No. 63) Pursuant to those ox Aff., Ex.A) (Dkt. 3 ghts of its insured, Schoeller-USA. Plaintiff ributed and/or shipped quantities of Masterbatch to of ributed and/or shipped quantities PROCEDURAL HISTORY Plaintiff Great Northern compensated Schoeller-USA pursuant to the Plaintiff Great Northern compensated 1 In June and July of 1998, Schoeller-USA sent two (2) separate purchase orders for of 1998, Schoeller-USA sent two In June and July policy to Schoeller- issued an indemnity Company, Plaintiff, Great Northern Insurance The record does not contain the identity or location 1 Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 3 of 26 3 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case insurance policy and is now subrogated to the ri 944. Chimassorb 944 was manufactured, sold, supp manufactured, 944 was 944. Chimassorb of Masterbatch fr that a defective shipment claims Spezialitatenchemie Lampertheim GmbH (“Ciba”). Ciba is a German corporation with its corporation Ciba is a German (“Ciba”). GmbH Lampertheim Spezialitatenchemie business in Germany. principal place of (F to Constab in Germany. Masterbatch directly supplied Masterbatch to Schoelle orders, Constab A) in New York. (Fox Aff., Ex. to Schoeller-USA Constab in Germany from was sent directly that it sold, dist (Dkt. No. 63) Constab admits (Am. of photographic papers. York for use in the manufacture Schoeller-USA in Pulaski, New began. to when the shipments Ans.¶ 4) The parties disagree as May 1, 1999. In August of 1998, Schoeller-USA received USA effective May 1, 1998 through and supplied were defective that photographic papers sold their customers from useless. As a result, Schoeller- the paper commercially causing “desensitized spots” rendering in the the defective papers and caused Schoeller-USA to sustain rejected USA customers of $499,017.93. amount negligence, contribution, against Constab for indemnity, result, plaintiff has set forth claims breach of warranty, breach of contract, and strict products liability. defective papers. NAM ., . (Dkt. No. 31- forum non conveniens ndant Constab moved for dismissal pursuant to for dismissal ndant Constab moved Y. C.P.L.R. §302(a). (Dkt. No. 43) The Court Y. C.P.L.R. §302(a). (Dkt. No. 43) 4 portion of the Decision. In July of 2003, the parties issed in this Court’s Memorandum-Decision and Order issed in this Court’s Memorandum-Decision e defendant Ciba expected or reasonably expected e defendant Ciba expected or reasonably , 75 Fed. Appx. at 826. The Second Circuit rejected not establish over either not establish personal jurisdiction ng all claims as against Ciba. (Dkt. No. 53) ng all claims . Great Northern Ins. Co. v. Constab Polymer-Chemie GmbH & Co . Great Northern Ins. Co. v. Constab Polymer-Chemie GmbH & Great Northern Ins. Co. (Dkt. No. 48) On September 19, 2003, the Second Circuit vacated and remanded in Second Circuit vacated and remanded 19, 2003, the (Dkt. No. 48) On September 2 By Memorandum-Decision and Order dated September 12, 2002, this Court granted Order dated September and By Memorandum-Decision as against the complaint the portion of the Order dismissing Plaintiff appealed from In March of 2002, defendants previously moved to dismiss the plaintiff’s complaint. (Dkt. complaint. the plaintiff’s to dismiss moved previously of 2002, defendants In March All claims against the defendant Ciba were dism against the defendant All claims 2 Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 4 of 26 4 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case 34, 37-39). finding that plaintiff did defendants’ motions that th to demonstrate failed held that plaintiff record did not establish the in New York. Similarly, that its actions would have consequences business in New York or “contracted to supply goods or that the defendant Constab transacted services”. Constab. part for further proceedings Nos. 25, 26, 29-34, 40). Defendant Ciba moved for dismissal pursuant to Rule 12(b)(2) for lack pursuant to Rule dismissal for moved Defendant Ciba 26, 29-34, 40). Nos. 25, for failure to pursuant to Rule 12(b)(6) dismissal or, in the alternative, for of personal jurisdiction, 40). Defe (Dkt. Nos. 25, 26, 29, 30, state a claim. based upon the lack of personal the Federal Rules of Civil Procedure Rule 12(b)(2) of doctrine of the alternative, pursuant to the jurisdiction, or, in statute, N. arm defendant under New York’s long 75 Fed. Appx. 824, 827 (2d Cir. 2003) (Dkt. No. 54). The Court held that the plaintiff 75 Fed. Appx. 824, 827 (2d Cir. 2003) (Dkt. No. 54). The Court prong of facie case of jurisdiction under the “contracting to supply goods” established a prima C.P.L.R. §302(a)(1). dated September 16, 2002. No appeal was taken from that from 16, 2002. No appeal was taken dated September entered into a voluntarily stipulation discontinui NAM , 75 Fed. . The Circuit Id Great Northern Ins. Co. r/trustee was assigned to the administration of r/trustee was assigned to the administration ound that Confab could be subject to ound that Confab ) German companies with the absence of any with the companies ) German 5 ovided for the regular delivery of products to a ovided for the regular Allianz Verisicherungs AG (“Allianz”) is principally responsible for the Allianz Verisicherungs AG (“Allianz”) is principally responsible 3 . Under these facts, the Court f . Under these facts, Id Following remand, this Court issued a order mandating that the parties conduct this Court issued a discovery order mandating Following remand, Defendants moving papers do not include an affidavit from the liquidator/trustee. papers do not include an affidavit from Defendants moving 3 Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 5 of 26 5 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case administration and handling of the claim against the former Allianz insured, Constab. All against the former the claim and handling of administration have been rejected. relative to this matter information/documentation requests to the liquidator for has failed to produce any (Gall Cert., ¶ 5). Therefore, despite the discovery order, defendant the defendant’s contention that the “totality of the circumstances” (including the fact that the fact (including the the circumstances” “totality of that the contention the defendant’s two (2 between Germany, was executed in contract the bankrupt company. direct ties to New York) precluded the exercise of jurisdiction. Indeed, the Court held that the jurisdiction. Indeed, the Court York) precluded the exercise of direct ties to New York to New Constab shipped chemicals test was unnecessary because totality of circumstances contract which expressly pr pursuant to a supply New York plant. prong C.P.L.R. §302. the “contracting to supply goods” jurisdiction under that it could Court determined the case for further proceedings “[b]ecause the District remanded over Constab,” and thus “did not analyze whether the exercise not exercise personal jurisdiction with federal due process.” of such jurisdiction would comport Appx. at 826. (90) days of May 25, 2006. The Court further ordered that jurisdictional discovery within ninety 16, 2006. (Dkt. grounds shall be filed by September on jurisdictional for dismissal any motion the appeal, Constab declared bankruptcy. (Defendant’s No. 57). During the pendency of liquidato of at p. 2). A German Memorandum NAM Northrop Studio A. Entertainment, See Int’l Shoe Co. v. State , 2004 WL 2199547, at *16 , 2004 WL , 203 F.3d 193, 196 (2d Cir. 2000) are interrelated, and thus, a weak showing of 6 DISCUSSION DUE PROCESS , 126 F.3d 25, 27 (2d Cir. 1997)). The exercise of personal , 126 F.3d 25, 27 (2d Cir. 1997)). Fort Knox Music Inc. v. Baptiste ., LLC., 2007 WL 437703, at *3 (S.D.N.Y. 2007). ., LLC., 2007 WL , 326 U.S. 310, 316 (1945). Where a plaintiff makes the threshold showing of a plaintiff makes , 326 U.S. 310, 316 (1945). Where Bensusan Rest. Corp. v. King Even if the exercise of jurisdiction under a state's long-arm statute is permissible as a statute is permissible long-arm of jurisdiction under a state's Even if the exercise Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 6 of 26 6 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case further information regarding the extent of sales by Constab to Schoeller in the State of New York in the State by Constab to Schoeller extent of sales regarding the further information jurisdictional dispute. to resolving the relative or any discovery with the whether such exercise comports decide court then must of state law, “the matter requisites of due process.” (quoting of due process if “minimum with the requirements comports jurisdiction over a nondomiciliary of the suit state such that the maintenance and the forum contacts” exist between the defendant of fair play and substantial justice. does not offend traditional notions of Washington case that the present a compelling test, a defendant must contacts required for the first minimum unreasonable. other considerations would render jurisdiction presence of some Grumman Overseas Serv. Corp. v. Banco Wiese Sudameries (S.D.N.Y. 2004). The two prongs of the inquiry of reasonableness. contacts requires a stronger demonstration minimum Inc. v. Direct Distrib Minimum Contacts NAM , 417 (quoting in New id. 4 Id. , 444 U.S. at World-Wide International Shoe (quoting at 475. Id. Id. World-Wide Volkswagon , 465 U.S. 770, 774 (1984)), and the , 465 U.S. 770, 774 (1984)), and or related to the defendant's contacts with the forum.” contacts with the forum.” or related to the defendant's 7 iction, pursuant to which “a State exercises personal , 466 U.S. 408, 414, n. 9 (1984). at 474 (quoting Id. , 433 U.S. 186, 218 (1977) (Stevens, J., concurring in (1977) (Stevens, J., concurring , 433 U.S. 186, 218 , 471 U.S. 462, 471-72 (1985) (quoting , 471 U.S. 462, 471-72 , 444 U.S. 286, 297 (1980)). Keeton v. Hustler Magazine, Inc. Shaffer v. Heitner , 326 U.S. 310, 319 (1945). “By requiring that individuals have ‘fair warning (1945). “By requiring that individuals , 326 U.S. 310, 319 (citing , 466 U.S. at 414. “The foreseeability that is critical to due process analysis ... is that , 466 U.S. at 414. “The foreseeability Burger King v. Rudzewicz see id. Where a plaintiff such as Great Northern, seeks to assert “specific jurisdiction” a plaintiff such as Where The Due Process Clause protects an individual's liberty interest in not being subject to the in not being liberty interest protects an individual's Process Clause The Due 4 Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 7 of 26 7 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case jurisdiction over a defendant in a suit not arising out of “Specific” jurisdiction contrasts with “general” jurisd with “general” jurisdiction contrasts “Specific” Helicopteros Nacionales de Colombia, S.A. v. Hall ), “the Due Process Clause ‘gives a degree of predictability to the legal system that system of predictability to the legal Due Process Clause ‘gives a degree “the judgment), as assurance minimum conduct with some their primary allows potential defendants to structure liable to suit.’” not render them to where that conduct will and will that a particular activity may subject [them] to the jurisdiction of a foreign sovereign,’” to the jurisdiction subject [them] activity may that a particular Co. v. Washington U.S. at 472 (quoting Volkswagen Corp. v. Woodson binding judgments of a forum with which he has established no meaningful “contacts, ties, or “contacts, ties, meaningful established no with which he has of a forum judgments binding relations.” York over an out-of-state defendant who has not consented to suit here, this “fair warning” York over an out-of-state defendant activities at residents of directed” his has “purposefully defendant the if is satisfied requirement the forum, those activities.” or relate to” alleged injuries that “arise out of litigation results from Helicopteros reasonably State are such that he should conduct and connection with the forum the defendant's anticipate being haled into court there.” that a defendant is not subject to jurisdiction ensures contacts” requirement 297). This “minimum fortuitous, or attenuated contacts.” “solely as a result of random, NAM , 956 F.Supp Kernan v. Kurtz-Hastings, 471 U.S. at 473 (citing , 471 U.S. at 472) (citations , 471 U.S. at 472) Burger King, ere the plaintiff shows that the defendant shows that ere the plaintiff 8 Burger King Corp. , 444 U.S., at 297-298). In analyzing whether a defendant , 444 U.S., at 297-298). In analyzing Specification and Supply Contract Aerogroup Int’l, Inc. v. Marlboro Footworks, Ltd. Aerogroup Int’l, Inc. v. Marlboro P.O. Box 250, Co. Rt. 2A Pulaski, New York 13142-0250 Co. & GmbH Constab Polymner-Chemie Mohnetal 16 Felix Schoeller GmbH & Co. KG & Felix Schoeller GmbH P.O. Box 3667, 4500 Osnabruck - hereinafter Schoeller- d) Papers, Inc. Schoeller Technical The record establishes that Constab “purposefully availed itself” of the forum by “purposefully availed itself” of the forum The record establishes that Constab Between: with its plants: and Specific jurisdiction is properly exercised wh exercised jurisdiction is properly Specific Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 8 of 26 8 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case ., 175 F.3d 236, 243 (2d Cir. 1999) (citing ., 175 F.3d 236, “purposefully availed” himself of the privilege of doing business in the forum state and the claim state and in the forum doing business the privilege of of availed” himself “purposefully state. the forum to defendant’s contacts with arises out of or relates Inc the Due Process Clause if it does not exceed its powers under State Thus “[t]he forum omitted). of stream delivers its products into the jurisdiction over a corporation that asserts personal State” and in the forum that they will be purchased by consumers with the expectation commerce consumers. forum those products subsequently injure World-Wide Volkswagen Corp.,supra 427, 437 (S.D.N.Y. 1996). which provided for the delivery of a product to New negotiating and entering into a contract provides, in part: York. The contract specifically has purposefully availed itself of the forum, the focus of a court's analysis should be on issues of analysis the focus of a court's the forum, has purposefully availed itself of voluntariness and foreseeability. NAM , 471 U.S. at Burger King ing “haled into” court in New York State for ing “haled into” court in New York racted for chemicals and products. The plaintiff racted for chemicals 9 of jurisdiction by this Court would nevertheless hed defendant Constab’s minimum contacts with hed defendant Constab’s minimum the Agreeement. Indeed, Constab concedes that Indeed, Constab concedes the Agreeement. was W-4748 Ruthen W-4748 Constab - - hereinafter (Dec. K. Walters, Ex. A) Ex. Walters, (Dec. K. Masterbatch UV quantities of it sold, distributed and/or shipped that admits The defendant The import of the “reasonableness” inquiry varies inversely with the strength of the The import Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 9 of 26 9 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case 1032 LD to Pulaski, New York and that the parties specifically contracted for this delivery. specifically contracted for this New York and that the parties 1032 LD to Pulaski, incidental” to the Agreement. “merely was not, as argued by Constab, Therefore, the shipment of goods by Constab Rather, the shipment order the purchase and that Constab “fulfilled a purchase order to Germany Schoeller-USA faxed shipped from Thereafter, Constab sent an invoice for materials pursuant to its Agreement.” than to Schoeller-Germany. to New York directly to Schoeller’s plant in Pulaski, rather Germany of its with a plant in New York for shipment Because defendant Constab contracted plant directly for its directly to New York, and then billed that New York chemicals/products contacts” exist to support jurisdiction in this Court. services, the Court finds that “minimum have foreseen be Thus, Constab could reasonably of the cont shipment arising from claims damage has established. Reasonableness contacts” showing - a strong (or weak) showing by the plaintiff on “minimum “minimum contacts” reduces (or increases) the weight given to “reasonableness.” 477. Accordingly, because plaintiff has establis show that an exercise New York, Constab must to exercise jurisdiction in a particular case depends it is “reasonable” be unreasonable. Whether NAM Metro. , 1991 WL See Goodyear Tire forum non conveniens , 462 F.2d 376, 379 (2d , 462 F.2d at 379. The claims need not be , 462 F.2d at 379. The claims , 462 F.2d at 379. e plaintiff's interest in obtaining convenient and convenient interest in obtaining e plaintiff's on the defendants' alleged breach . . . would not on the defendants' 10 Olympic Mexico, S.A. v. Germanischer Lloyd See Olympic ., 119 F.3d 1018, 1027 (2d Cir. 1997) (quoting ., 119 F.3d 1018, Olympic Corp. v. Societe Generale , 84 F.3d 560, 568 (2d Cir. 1996))., 84 F.3d 560, 568 Chaiken v. VV Pub. Corp Chaiken v. VV Pub. In the case at bar, the legal issues between the plaintiff, defendant and any potential third In the case at bar, the legal issues between the plaintiff, defendant Burden on the Defendant defendant, former on it because the will be imposed Constab argues that an undue burden Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 10 of 26 10 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case involve the same issues as [plaintiff’s] claim against the defendants, since the warranties were against claim issues as [plaintiff’s] involve the same effective relief; (4) the interstate judicial system's interest in obtaining the most efficient interest in obtaining the most system's (4) the interstate judicial relief; effective substantive interest of the states in furthering controversy; and (5) the shared resolution of the social policies. will be the matters legal issues is such that a separate of in the difference tried together if unlikely to produce inconsistent results. have against [third party the defendants might claim party defendant are separate. “Whatever or contribution based defendants] for indemnity on: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests defendant; on the will impose jurisdiction exercise of burden that the on: (1) the (3) th the case; state in adjudicating of the forum Life v. Robertson-Ceco Corp Life v. Robertson-Ceco thus bear the expense of and Constab will in this forum Ciba, is not subject to jurisdiction potential inability to implead and New York. Defendant’s Germany in both litigating claims but it is not compelling. favors dismissal, third-party defendants in this forum de Co. v. Germanischer Lloyd, Volkswagen 230622, at *4 (S.D.N.Y. 1991) (citing be taken into account in deciding a may Cir.1972)) (benefits of potential third party action, the key factor to be considered is the respect to a application). With in legal issues between the parties. difference NAM , Tire Co., 1991 WL 230622, at *4. 230622, Tire Co., 1991 WL Lehman v. Humphrey Cayman, Ltd. v. Humphrey Cayman, Lehman , 1991 WL 230622, at *4 (plaintiffs' 230622, , 1991 WL nt of the liability of other parties for creating nt of the liability can be decided in this forum without Ciba as a this forum can be decided in 11 upport, if any, because “the conveniences of upport, if any, because “the conveniences See Goodyear see also Goodyear Tire see also In any event, defendant Constab offers conflicting evidence concerning Id. Constab further claims that it will sustain an undue burden with respect to availability of that it will sustain an undue burden with respect to availability Constab further claims and the need for in Germany Constab argues that the existence of documents For example, Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 11 of 26 11 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case made by the defendants, not by [third party defendants].” [third party defendants].” not by by the defendants, made 713 F.2d 339, 343 (2d Cir. 1983); 339, 343 (2d Cir. 713 F.2d liability, and defendant's upon allegations of negligence based primarily actions against defendant to discover defects is independe if any, for failure action against Constab those defects). Plaintiff’s its right to of not deprive defendant will the present action in this forum Thus, trial of defendant. Ciba in Germany. from seek indemnification pertaining to the that all witnesses and documents evidence and witnesses. It is asserted the hardship of However, of the alleged defective product are in Germany. manufacture is more documents where obtaining access to witnesses and defending a in a forum See Met. Life Ins. Co. v. reason for dismissal. difficult, it does not provide a compelling 574 (2d Cir. 1996). Moreover, even if forcing the defendant Robertson-Ceco Corp., 84 F.3d 560, the base were found to be a burden, its home relatively distant from to litigate in a forum s would provide defendant only weak argument burden only a and transportation ease what would have been a serious communication modern few decades ago. ” will be a true hardship. whether access to witnesses and documents However, Constab also submitted dismissal. of to be considered in favor translation is a factor against claim plaintiff’s for manager Gerlinde Gall who is the Allianz claims of the Certification the following: Constab. Ms. Gall certifies NAM , 472 F.Supp.2d 349, 362 t location, or other information which would which information t location, or other y be obtained by the plaintiff in Germany; 3) y be obtained by the plaintiff in Germany; 12 ould be similarly burdened if this matter were matter burdened if this ould be similarly aining convenient and effective relief would be Sea Tow Serv. Int’l, Inc. v. Pontin , 306 F.Supp.2d 226, 229 (N.D.N.Y. 2004). , 306 F.Supp.2d 226, 229 (N.D.N.Y. Excelsior Coll. v. Frye Remaining Factors in factors, Constab argues: 1) New York has no specific interest As to the remaining I have come to learn that there are no current operations of Allianz’ insured. Assets of the of insured. Assets Allianz’ of operations there are no current to learn that I have come parties. sold to third have been company solicited the and have the bankrupt company for the liquidator/trustee I have contacted the and files. I have also solicited liquidator in locating documents assistance of the Constab. against in defending the claim liquidator’s assistance I have received no assistance have been rejected. requests to the liquidator for All my as to documen him from direction or advice in the defense of this claim. be of assistance if it is required upon defendant Constab burden will be imposed it is true that some While of Schoeller-USA, New York has an “unquestionable The Court disagrees. As the home Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 12 of 26 12 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case venued in another jurisdiction. Based thereupon, these two factors balance and do not warrant venued in another jurisdiction. Based dismissal. adjudicating the dispute; 2) convenient relief ma Thus, as evidenced by the sworn testimony of Ms. Gall, there is no non-testimonial proof in this proof there is no non-testimonial of Ms. Gall, by the sworn testimony Thus, as evidenced have been “rejected.” for the production of this information because all requests matter conflicting evidence concerning whether access to documents Consequently, the record contains discovery in this case. production will even be an issue during or the challenges of document plaintiff w to defend this action in New York, both judicial resources; and 4) policy considerations of litigation in New York will be a drain of proceeds in Germany. and New York will be protected if the matter Germany interest” in adjudicating the claims. (E.D.N.Y. 2007). Plaintiff’s interest in obt furthered by litigating this case in New York, where the Schoeller-USA plant is located and furthered NAM , 472 F.Supp.2d 175 F.3d 236, , 410 F.Supp.2d 228, Sea Tow , 305 F.3d 120, 130 (2d Boehner v. Heise ns a Forum Selection Clause which warrants ns a Forum light most favorable to plaintiff, defendant favorable light most Kernan v. Kurz-Hastings, Inc., Kernan v. Kurz-Hastings, 13 to dismiss on this basis must be denied. on this basis must to dismiss Int’l Healthcare Exch., Inc. v. Global Healthcare Exch., Inc. Int’l Healthcare

does not weigh in either party's favor. does not weigh in either party's See , 472 F.Supp.2d at 362. Neither party has “suggested or shown at 362. Neither party has “suggested , 472 F.Supp.2d FORUM SELECTION CLAUSE Sea Tow Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez Bank Brussels Lambert v. Fiddler , 470 F.Supp.2d 345, 360 (S.D.N.Y. 2007) (plaintiff’s interest in obtaining convenient in obtaining (plaintiff’s interest (S.D.N.Y. 2007) 345, 360 , 470 F.Supp.2d Defendant asserts that the Agreement contai Defendant asserts that the Agreement In sum, because the aforementioned factors do not present a compelling case that the do not present a compelling factors because the aforementioned In sum, Ruthen/Mohne even in the case of is for delivery and payment “Place of performance of unloading is the Franko-delivery. In the case of CIF and C&F transactions the place and obligations is for jurisdiction for all reciprocal claims Place of place of performance. exchange and check debts.” bills of also for [Germany], Warstein all merchants Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 13 of 26 13 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case 245 (2d Cir. 1999). Therefore, this factor 245 (2d Cir. 1999). Therefore, this at 362 (quoting motion Cir. 2002). Accordingly, defendant’s that any substantive social policies would be furthered or undermined by permitting the case by permitting or undermined social policies would be furthered that any substantive to go forward in New York.” against [defendant] in this case would be unreasonable, such exercise of personal jurisdiction over defendant Court's of due process. with the requirements exercise comports Specifically, the parties to the contract (Schoeller-Germany complaint. of the amended dismissal and the defendant) agreed: Exch. LLC fails to ). Moreover, defendant her choice of is furthered by maintaining and effective relief exercising persuade the Court against “policy consideration” that would offer a persuasive case. jurisdiction in this evidence in the 240 (S.D.N.Y. 2006). Viewing the case is “the ‘exceptional situation’ where exercise of Constab has failed to show that this contacts are present.” though minimum jurisdiction is unreasonable even where the company conducts business. conducts company where the NAM (citing See id. See id. ., 22 F.3d 51, 53 (2d Cir. Int'l Private Satellite Burrows Paper Corp. v. at plaintiff, as the insurer of Schoeller-USA, is of Schoeller-USA, as the insurer at plaintiff, , 494 F.3d 378, 383 (2d 2007). The first inquiry , 494 F.3d 378, 383 14 , 148 F.3d 1285, 1299 (11th Cir. 1998)). ., 2007 WL 1965417, at *4 (E.D.N.Y. 1997) (quoting ., 2007 WL , 975 F.Supp. 483, 485 (W.D.N.Y. 1997)) (internal quotation , 975 F.Supp. 483, 485 (W.D.N.Y. Phillips v. Audio Active, Ltd. Phillips v. Audio , 2007 WL 2089682, at *3 (N.D.N.Y. 2007) (quoting 2089682, , 2007 WL Rohrbaugh v. U.S. Mgmt, Inc Determining whether to dismiss a claim based on a forum selection clause involves a selection clause on a forum based a claim to dismiss whether Determining In the absence of direct communication of a forum-selection clause to a non-signatory, the clause to a forum-selection of In the absence of direct communication Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 14 of 26 14 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case bound by the terms of the Agreement negotiated between Constab and Schoeller-Germany. Constab and Schoeller-Germany. between negotiated of the Agreement the terms bound by and constitutes a mandatory language contends that the aforementioned Defendant further selection clause. forum unambiguous analysis. multi-step 462 F.3d 95, 103 (2d Cir. 2006). The second step requires (citing D.H. Blair & Co. v. Gottdiener, are i.e., to decide whether the parties or permissive, a court to classify the clause as mandatory to do so. permitted or simply designated forum required to bring any dispute to the (Dec. Klaus Walter, Ex. A). Defendant contends th Defendant contends Ex. A). Walter, (Dec. Klaus to the party resisting enforcement. was reasonably communicated is whether the clause John Boutari & Son, Wines & Spirits, S.A. v. Attiki Imps. & Distribs. Inc John Boutari & Son, Wines & Spirits, 1994). “is closely related to be nevertheless bound by the clause if the non-signatory non-signatory may foreseeable that it will be bound.” the dispute such that it becomes Moore & Assoc. Partners, L.P. v. Lucky Cat Ltd. if its interests are ‘completely “A non-party is ‘closely related’ to a dispute omitted). marks interests or signatory party's derivative’ of and ‘directly related to, if not predicated upon’ the conduct.” Lipcom v. Underwriters at Lloyd's, London NAM , ” See see also , 2004 WL , the Second Circuit held Allstate Ins. Co. v. Mazzola Allstate Ins. Co. See M/S Bremen v. Zapata Off- Boutari ssive forum selection clause indicates the selection clause indicates ssive forum , 22 F.3d at 52 (citations omitted); , 22 F.3d at 52 (citations omitted); John Boutari & Sons, Wine & Spirits, S.A. v. rthern nor Schoeller-USA are signatories to rthern nor Schoeller-USA selection clauses is that [w]hen only jurisdiction only selection clauses is that [w]hen 15 Boutari Fireman's Fund McMgee Marine v. M/V Caroline Fireman's Fund McMgee Marine ., 966 F.2d 101, 106 (2d Cir. 1992). “The doctrine of equitable 106 (2d Cir. 1992). “The doctrine ., 966 F.2d 101, , 477 F.Supp 438, 442 n.11 (S.D.N.Y. 1979) (an agreement ., 22 F.3d 51, 53 (2d Cir. 1994). In , 407 U.S. 1, 15 (1972). In contrast, “a permi , 407 U.S. 1, 15 (1972). In contrast, Great Northern, as the insurer for Schoeller-USA, is subrogated to the rights of Schoeller- to the rights is subrogated for Schoeller-USA, as the insurer Great Northern, A mandatory forum selection clause grants exclusive jurisdiction to a selected forum and selection clause grants exclusive jurisdiction to a selected forum forum A mandatory Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 15 of 26 15 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case USA. It is clearly established that “an insurer-subrogee stands in the shoes of its insured. stands in the shoes that “an insurer-subrogee is clearly established USA. It Gibbs v. Hawaiian Eugenia Corp Gibbs v. Hawaiian that the insured by pursuing any claims insurers . . . to seek indemnification subrogation allows responsible for the loss.” had against third parties legally have may 175 F.3d 255, 258 (2d Cir. 1999). Neither Great No (2d Cir. 1999). Neither Great 175 F.3d 255, 258 clause is clearly “foreseeable” selection of the forum the enforcement However, the Agreement. this the parties and the basis upon which plaintiff has commenced given the relationships between against plaintiff be invoked selection clause may that the forum suit. Therefore, the Court finds or permissive. the clause is mandatory requiring an analysis of whether that it should be set aside. should control absent a strong showing Shore Co. but does not require the consent to resolve their dispute in a given forum, contracting parties' dispute to be resolve in that forum.” if jurisdiction and venue selection clause is mandatory A forum 287663 at *3 (S.D.N.Y. 2004)). or exclusive language. are specified with mandatory Attiki Imp. & Distribs., Inc City of New York v. Pullman Inc. that “[t]he general rule in cases containing forum that “[t]he general rule in cases containing forum further language indicating the is specified the clause will generally not be enforced without some jurisdiction exclusive.” intent to make parties' NAM ., accord PT analysis is forum non forum non conveniens , 997 F.2d 974, 979 (2d Cir. 1993). 330 U.S. 518, 527 (1947); 138 F.3d 65, 73 (2d Cir. 1998). The Hartford Fire Ins. Co. v. Novocargo USA Inc Novocargo USA Fire Ins. Co. v. Hartford convenient forum requiring dismissal pursuant requiring dismissal convenient forum any but does not designate the forum or venue by designate the forum any but does not 16 e contract does not contain specific language of e contract does not FORUM NON CONVENIENS affords a court broad discretion to dismiss an action where affords a court broad discretion to dismiss : (1) what degree of deference is properly accorded to the plaintiff's choice : (1) what degree of deference is properly accorded to the plaintiff's Blanco v. Banco Indus. de Venezuela, S.A. Blanco v. Banco Indus. de Venezuela, Koster v. (Am.) Lumbermens Mut. Cas. Co., Lumbermens Koster v. (Am.) Defendant argues that New York is not a Defendant argues that New York The forum selection clause at issue provides: “Place of jurisdiction for all reciprocal clause at issue provides: “Place selection The forum Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 16 of 26 16 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case applicable. of Civil Procedure and the doctrine of to Rule 12(b)(3) of the Federal Rules conveniens. Forum non conveniens ends of “will best serve the convenience of the parties and the adjudication in another forum justice.” United Can Co. Ltd. v. Crown Cork & Seal Co. Inc., based upon for dismissal Second Circuit has outlined a three-step process in analyzing a motion forum non conveniens conferring jurisdiction in one forum will not be interpreted as [e]xcluding jurisdiction elsewhere jurisdiction as [e]xcluding will not be interpreted forum in one jurisdiction conferring language of exclusion”); contains specific unless it vague and does The language is extremely in any other forum. exclusivity precluding jurisdiction thereupon, exclusive. Based jurisdiction in Germany to make not clearly reflect the parties intent will be considered by this but selection provision is properly construed as permissive the forum rather than permissive Based on the in Germany. Court as one factor in favor of jurisdiction selection clause, normal nature of the forum mandatory 156 F.Supp.2d 372, 375-376 (S.D.N.Y. 2001). 156 F.Supp.2d 372, The Ex. A). (Dec. K. Walter, [Germany].” Warstein is for all merchants and obligations claims specifies jurisdiction in Germ contract language court. Further, th identifying a particular NAM Iragorri v.

ial of a diversity case in a forum ere is reason for holding the trial ssibility of view of premises, if premises, view of ssibility of only. There is a local interest in proof; availability of compulsory proof; availability ng handled at its origin. duty , Inc., 416 F.3d 146, 153 (citing , Inc., 416 F.3d 146, at must govern the case, rather than at must the enforceability of a judgment if the enforceability of a judgment the one likely to be most pressed, is pressed, be most the one likely to 17 ntiff's choice of forum should rarely choice of forum ntiff's ten said that the plaintiff may not, by ten said that the plaintiff may , 330 U.S. 501, 508-509 (1947). ., 274 F.3d 65, 71-73 (2d Cir. 2001)). As stated by the Supreme Court: by the Supreme (2d Cir. 2001)). As stated ., 274 F.3d 65, 71-73 that is at home with the state law th that is at home in conflict of untangle problems other forum having a court in some to itself. , and in law foreign in their view and reach rather than in remote parts of the country in their view and reach rather than in remote where they can learn of it by report having localized controversies decided at home. There is an appropriateness, too, in having the tr be disturbed. Factors of public interestplace in applying the doctrine. also have is piled up when litigation for follow difficulties Administrative in congested centers instead of bei the people of a upon beis a burden that ought not to imposed which has no relationcommunity to the litigation. In cases which persons, th touch the affairs of many view would be appropriate to the action; and allview would be appropriate to other practical of a case easy, expeditious and inexpensive. trial that make problems as to also be questions There may and advantages relative will weigh court The obtained. is one obstacles to fair trial. It is of “vex,” “harass,” or “oppress” the choice of an inconvenient forum, expense or trouble not necessary to defendant by inflicting upon him But unless the balance is strongly his own right to pursue his remedy. in favor of the defendant, the plai An interest to be considered, and An interest to be the considerations are the litigant. Important of the private interest to sources of relative ease of access of unwilling, and theprocess for attendance cost of obtaining willing witnesses; po attendance of Norex Petroleum Ltd. v. Access Indus. Norex Petroleum

Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 17 of 26 17 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case Gulf Oil Corp. v. Gilbert Deference to Plaintiff’s Choice of Forum United Techs. Corp of forum; (2) whether the alternative forum proposed by the defendant is adequate to adjudicate is adequate by the defendant proposed forum whether the alternative (2) of forum; in the choice implicated and public interests of the private (3) an analysis dispute; and the parties' of forum. NAM Piper , 2007 WL 1771582, at *3 , 2007 WL , 274 F.3d at 70-71). The deference , 274 F.3d at 70-71). es forum by a foreign plaintiff is es forum rsely, where less deference is due, Iragorri nce to which the plaintiff's choice nce to which the plaintiff's 18 there is an assumption that the plaintiff's choice of that the plaintiff's there is an assumption , 329 F.3d 64, 71 (2d Cir. 2003). When reviewing 2003). When 64, 71 (2d Cir. , 329 F.3d ., 303 F.3d 470, 476-77 (2d Cir. 2002) (quoting , 329 F.3d at 71 (citing , 329 F.3d at 71 forum non conveniens, forum non conveniens, Aguinda v. Texaco, Inc The degree of deference to be accorded the plaintiff's choice of forum to be accorded the plaintiff's The degree of deference rather, it merely outcome; the final of is not determinative two steps of the analysis. re-calibrates the scales for the remaining “[T]he greater the degree of defere inconvenience the is entitled, the stronger a showing of forum of non conveniens to prevail in securing forum make defendant must Conve (citation omitted) dismissal.” to for the defendant “the easier it becomes succeed non on a forum convenience by showing that would be better conveniens motion courts.” served by litigating in another country's to great deference is generally entitled forum choice of A “plaintiff's “The thewhen the plaintiff has sued in forum.” plaintiff's home choice of its afforded a plaintiff's reason great deference is generally to be convenient.’ “ By is presumed ‘is because it forum home contrast, the choice of a United Stat entitled to less deference, for the presumption that the choice is for the presumption entitled to less deference, less reasonable.” convenient “is much Pollux Holding An alternative forum is generally adequate and available when defendants are amenable to is generally adequate and available when defendants are amenable An alternative forum It is well settled that a plaintiff's choice of forum is entitled to substantial deference. entitled to substantial is forum choice of settled that a plaintiff's It is well Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 18 of 26 18 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case due to the plaintiff’s choice varies depending upon the circumstances: choice varies depending upon due to the plaintiff’s In re Ski Train Fire In Kaprun Austria on November 11, 2000 forum will stand unless the defendant can demonstrate that reasons exist to afford it less that reasons exist to afford can demonstrate will stand unless the defendant forum deference. Based thereupon, the Court will afford the (S.D.N.Y. 2007) (internal citations omitted). herein a “high degree” of deference. plaintiff’s choice of forum Adequate Alternative Forum is clearly offered by the other forum unless “‘the remedy jurisdiction in that forum, unsatisfactory.’” Pollux Holding Ltd. v. Chase Manhattan Bank Manhattan Ltd. v. Chase Pollux Holding a motion to dismiss for to dismiss a motion NAM , see see also See forum non Schertenleib v. Traum See Bank of Credit and Commerce Int'l See Bank of Credit and Commerce , 632 F.2d 963, 968 & n. 6 (2d Cir. 1980). , 632 F.2d 963, 968 & n. 6 (2d Cir. , 940 F.Supp 584, 590 (S.D.N.Y. 1996); , 940 F.Supp 584, 590 (S.D.N.Y. 19 , 632 F.2d at 968 (quoting tion, “plaintiff [would] still [be] protected by the , 273 F.3d 241, 246 (2nd Cir. 2001) (“[a]n adequate , 273 F.3d 241, 246 (2nd Cir. 2001) analysis strongly favors dismissal, courts may impose courts may analysis strongly favors dismissal, Calavo , 454 U.S. 235, 255 (1981)). Constab argues that it “consents” to that it “consents” Constab argues 235, 255 (1981)). , 454 U.S. forum non conveniens Manela v. Garantia Banking, Ltd. when it would be impossible for a plaintiff to proceed with a suit there due to the for a plaintiff to proceed impossible when it would be , 416 F.3d at 159. To reconcile this issue, the Court could condition dismissal on issue, the Court could condition dismissal , 416 F.3d at 159. To reconcile this The Second Circuit has held that a forum is unavailable for purposes of has held that a forum The Second Circuit Where a Where Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 19 of 26 19 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case Aircraft Co. v. Reyno Aircraft jurisdiction in Germany for claims raised in the complaint. However, plaintiff Great Northern plaintiff However, the complaint. raised in claims for in Germany jurisdiction and further, that the bar the action in Germany may of limitations asserts that the statute currently liquidator/trustee since the German by Constab is improper “consent” expressed an affidavit with such consent. bankruptcy has not provided overseeing Constab’s conveniens defense. limitations statute of meritorious a availability of Ltd. v. State Bank of Pakistan (Overseas) case in that forum.”); bars the bringing of the does not exist if a statute of limitations forum also Norex German arise under defense that may any statute of limitations to waive defendant’s agreement accept jurisdiction to courts refuse in the event that the German law, and could retain jurisdiction over the case. 589 F.2d 1156, 1163 (2d Cir. 1978)). conditions on dismissal in order to address lingering concerns that litigation in the foreign forum lingering concerns that litigation in the foreign in order to address conditions on dismissal ability to seek redress. on the plaintiff's impact nevertheless have a significant may Calavo Growers of California v. Generali Belgium Calavo Growers of California v. the need for extensive inquiry into foreign jurisdictional law, since obviates Conditional dismissal if the foreign court refused to take jurisdic conditional nature of the dismissal.” NAM Norex , 330 U.S. at , 2001 WL See Gilbert , 994 F.2d 996, 1001 (2d Cir. 1993), , the Court held: , the Court its refiling in the United States its refiling in the termines that Germany is the proper forum is the that Germany termines plaintiff's objection that the action could not be plaintiff's 20 mpel attendance of unwilling witnesses; (3) the cost attendance of mpel cases, to ensure that defendants will not defendants cases, to ensure that Henderson , 470 F.Supp.2d 294, 304 (S.D.N.Y. 2006) (citing (S.D.N.Y. 2006) 294, 304 , 470 F.Supp.2d Accord Ingram Micro, Inc. v. Airoute Cargo Express Accord Ingram Micro, Inc. v. Airoute if the defendant's proposed alternative forum turns out alternative forum proposed to be if the defendant's inadequate. [C]ourts must take measures, as part of their dismissals in part of their dismissals as take measures, [C]ourts must forum non conveniens courts. Such the foreign of to evade the jurisdiction attempt the parties to between include agreements often measures that process in of to service to submit forum, litigate in another defenses, the assertion of any limitations jurisdiction, to waive of the and to agree to the enforceability to agree to discovery, should also include Courts foreign judgment. a “return which perm jurisdiction clause,” , 510 U.S. 945 (1993). Moreover, the public interest factors are: (1) the , 510 U.S. 945 (1993). Moreover, the public interest factors are: , 416 F.3d at 159-60). Indeed, in at 159-60). Indeed, , 416 F.3d , the Court notes that there is no forum which would be convenient for all parties and which would be convenient for forum , the Court notes that there is no see also Allstate Life Ins. Co. v. Linter Group Ltd. Turning to consider the private and public interest factors outlined by the Supreme Court Supreme outlined by the public interest factors Turning to consider the private and Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 20 of 26 20 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case Gilbert 508-09; 470 F.Supp.2d at 304 (citing Petroleum Thus, if the Court de 282696, at *7 (S.D.N.Y. 2001). disposes of for this action, a conditional dismissal prosecuted there. Gilbert Factors in evidence and in this case include: (1) location of witnesses. The private interest factors process to co witnesses; (2) the availability of a case the trial of that make willing witnesses; (4) practical problems obtaining attendance of of easy, expeditious, and inexpensive; and (5) enforceability of judgments. cert. denied administrative problems which follow when litigation is added to existing heavy caseloads in which follow problems administrative Henderson v. Metro. Bank & Trust Co. v. Metro. Bank Henderson NAM , 330 Gilbert , 320 F.Supp.2d 140, 161 esses/Cost of Obtaining Attendance of esses/Cost of Obtaining Attendance on this issue, however, are conclusory. Great on this issue, however, are conclusory. ear the expense of obtaining the attendance of 21 Reers v. Deutsche Bahn AG , 899 F.Supp 1217, 1233 (S.D.N.Y. 1995). , the argument is unpersuasive and there is conflicting evidence in is unpersuasive and there is conflicting , the argument supra Ease of Access to Sources of Proof Ease of Access to try this case is located in evidence necessary to that documentary Defendant claims Compelling Production of Unwilling Witn Compelling Production of Unwilling Willing Witnesses in the United States including arguing that necessary witnesses are unavailable While Plaintiff’s complaint asserts causes of action including negligence, breach of contract, asserts causes of action including negligence, Plaintiff’s complaint Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 21 of 26 21 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case U.S. at 508-09. Private Interest discussed As Germany. the record concerning the availability of documents in any event. documents of the record concerning the availability involved in the design and production of and other employees witnesses to the contract, scientists these witnesses is and/or control of that the identity and employ Constab concedes the chemicals, are plaintiff asserts that all witnesses on the issue of damages currently unknown. In opposition, arguments located in the United States. Plaintiff’s that worldwide travel means of willing witnesses, despite the venue. However, the development is inconvenient.” distance alone is not a sufficient basis on which to conclude that a forum “mere Bybee v. Oper der Standt Bonn of this is the central point breach of warranty and strict products liability. The Agreement Northern does not identify documents, delineate the names of any witnesses or the substance of of any witnesses delineate the names Northern does not identify documents, such witnesses would provide. testimony party will b (S.D.N.Y. 2004). Undoubtedly, some congested centers; (2) the imposition of jury duty; (3) the local interests; and (9) the difficulty and (9) the the local interests; of jury duty; (3) imposition centers; (2) the congested law. law rules and foreign choice of apply foreign must when a forum which arises NAM forum non See Broad. Rights Int’l Corp. v. Societe du Broad. Rights Int’l Corp. v. Societe , 239 F.Supp.2d 377, 386 (S.D.N.Y. 2003). , 239 F.Supp.2d 22 , 2007 WL 1771582, at *7. It is not clear that the German 1771582, at *7. It is not clear that , 2007 WL , 320 F.Supp.2d at 162; Reers , 675 F.Supp 1439, 1447 (S.D.N.Y. 1987) (testimony that must be that must 1987) (testimony , 675 F.Supp 1439, 1447 (S.D.N.Y. In re Ski Train dismissal. dismissal. It is clear that evidence and/or testimony from witnesses involved in the manufacturing of involved in the manufacturing witnesses from and/or testimony It is clear that evidence Enforceability of Judgments supports results in this forum The inability to enforce whatever judgment Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 22 of 26 22 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case litigation. The Agreement was negotiated in Germany and the manufacturing and shipping of the and and the manufacturing negotiated in Germany was The Agreement litigation. have occurred breach may Therefore, whatever was based in Germany. product alleged defective of plaintiff’s case, the Under any theory Germany. occurred in based upon the Agreement, but those involved in the transactions, are not those to the defective papers, critical witnesses product. that resulted in the alleged defective and manufacturing formulation VictoriaTea.com, Inc. v. Cott Beverages, Canada VictoriaTea.com, under the is necessary to this action. The parties have recourse Masterbatch and/or Chimmasorb production in foreign countries. and document depositions Hague Convention to compel would be required to seek through the assistance of foreign However, the evidence the parties process of obtaining this evidence would be costly and courts would be extensive and the inconvenience that this would create for the inefficiency and The massive time-consuming. of these where many of an alternative forum striking given the existence parties is all the more would not arise. problems Tour de France, S.A.R.I. established by the Hague Convention . . . is not a factor that obtained through the procedures of live witness testimony would expedite the resolution of an action in New York). The expense in the United States. Based thereupon, this at trial will be clearly be greater if the action remains factor weighs in favor of litigating the case in Germany. conveniens NAM , 825 , 462 F.2d NCA Holding private interest factors See Stewart v. Adidas See Stewart Gilbert . is used to choose between foreign and

Olympic Corp. v. Societe Generale United States judicial districts, the appropriate , 1999 WL 39539, at *3 (S.D.N.Y. 1999). 39539, at *3 (S.D.N.Y. , 1999 WL ong recognized the particular need to extend ong recognized the particular need Cunard Steamship Co. Ltd. v. Salen Reefer Cunard Steamship Co. Ltd. v. Salen of foreign courts in liquidating or winding up the of foreign courts 23 forum non conveniens Victrix S.S. Co., S.A. v. Salen Dry Cargo A.B. Victrix S.S. Co., S.A. v. Salen Dry 773 F.2d at 452 (creditors of an insolvent foreign 773 F.2d at 452 (creditors of an forum non conveniens Cunard, , 773 F.2d 452, 458 (2d Cir. 1985). Any judgment entered by a United States court entered by Any judgment , 773 F.2d 452, 458 (2d Cir. 1985). Local Interest and Jury Duty Imposition The defendant maintains that Germany has a stronger interest in this case than New York. has that Germany The defendant maintains The defendant’s bankruptcy further complicates the issues of enforceability. “American bankruptcy further complicates The defendant’s , 1997 WL 218431, at *7 (S.D.N.Y. 1997). Through further proceedings, the plaintiff may be plaintiff may the further proceedings, 1997). Through at *7 (S.D.N.Y. 218431, , 1997 WL Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 23 of 26 23 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case 376, 379 (2d Cir. 1972). American courts have l 376, 379 (2d Cir. 1972). American proceedings. to foreign bankruptcy comity bankrupt before a duly against a foreign to assert their claims be required corporation may Based on the foregoing, the convened foreign bankruptcy tribunal. on the basis of weigh in support of dismissal Public Interest United States fora, rather than between different courts would recognize an American judgment based on German law. German based on judgment American recognize an courts would However, “because the doctrine of successful in enforcing a judgment of this Court in Germany; however it is undisputed that of this Court in Germany; a judgment successful in enforcing in Germany. judgment less difficulty enforcing a German plaintiff would have A.G. Landesbank Girozentrale Corp. v. Norddeutsche recognized the interest courts have consistently business entities.” their own domestic of affairs Services AB record does not contain any evidence to suggest that Constab has would likely be worthless as the in the United States. assets subject to attachment F.2d 709, 713 (2d Cir. 1987); NAM , 2003 WL 294 F.3d 21, 32-33 (2d Cir. 2002)). 294 F.3d 21, 32-33 of Appeals made clear that this consideration clear that this of Appeals made one way or another. Defendant argues that the See NCA Holding Corp. v. Norddeutshe 24 udicating the matter in Germany. Plaintiff disputes Plaintiff in Germany. udicating the matter DiRienzo v. Philip Serv. Corp., DiRienzo v. Philip Nat'l Union Fire Ins. Co. of Pittsburgh v. BP Amoco, P.L.C. of Pittsburgh v. Fire Ins. Co. Nat'l Union , 1999 WL 39539, at * 3 (S.D.N.Y 1999). However, as the 39539, at * 3 (S.D.N.Y , 1999 WL The respective interests of the United States and Germany balance and therefore, do not Germany of the United States and The respective interests to their own sitting on cases with no relevance from The interest in protecting jurors Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 24 of 26 24 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case inquiry here is whether the United States as a whole, not just New York, has an interest in just New York, as a whole, not United States is whether the inquiry here the dispute.” adjudicating 21180421, at *9 n. 8 (citing 21180421, at *9 as States has an interest in this matter The United the complaint. of dismissal of weigh in favor was utilized by a The alleged defective product occurred in the United States. the damage/injury York. The paper was then sold of photographic paper in New for processing New York company is a States who sustained injury within the United States. The plaintiff in the United to consumers place of business in New Jersey. In contrast, Germany Minnesota corporation with its principal the lawsuit is the to the liability issues. The basis of has an interest in this litigation relative of the chemicals The manufacture and executed in Germany. which was negotiated Agreement entangled in bankruptcy The defendant is currently in Germany. alleged to be defective occurred interests, this factor does not favor one courts. Given the competing proceedings in the German jurisdiction over the other. consideration. is an additional public community Landesbank Girozentrale have equal interests, this factors do not tip notably dockets in the federal district courts favor adj that the congestion is any this notion as the defendant has not offered any evidence to demonstrate “[T]he Court greater in New York than Germany. as all judicial vacancies are [court congestion] is not relevant within the Second Circuit as long NAM see e.g., Guidi v. Inter-Continental Guidi v. See HSBC USA, Inc. v. Prosegur See HSBC , 899 F.Supp at 1223; Bybee lusively resolving the conflict-of-law issue, it lusively resolving the conflict-of-law at weighs in favor of dismissal. Defendant of dismissal. at weighs in favor , 811 F.2d 127,129 (2d Cir. 1987). Plaintiff , 811 F.2d 127,129 (2d Cir. 1987). 25 rranty, products liability and contract action, but rranty, products liability and contract , 997 F.2d 974, 983 (2d Cir. 1993). The overwhelming , 997 F.2d 974, 983 (2d Cir. 1993). CONCLUSION , 2004 WL 2210283, at *2 n.1 (S.D.N.Y. 2004) (quoting 2004) (quoting at *2 n.1 (S.D.N.Y. 2210283, , 2004 WL . 224 F.3d 142, 145 n.7 (2d Cir. 2000)). . 224 F.3d 142, 145 See Transunion Corp. v. PepsiCo, Inc. See Transunion Corp. v. PepsiCo, Choice of law foreign law is a factor th The need to apply Litigation in the present venue would be inefficient for several reasons including, but not Litigation in the present venue would be inefficient for several reasons Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 25 of 26 25 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case filled, resulting in a ‘full complement of judges for the District. for the District. of judges complement in a ‘full filled, resulting Paraguay, S.A. Paraguay, Hotels Corp specifically dispute this Plaintiff does not this matter. law applies to argues that German law that any nuances in German that the defendant has not demonstrated but contends statement conc ruling. Without would prevent this court from that the applicable law will be the law of this motion purposes of for is reasonable to assume Germany. breach of wa argues the action involves simple The basis and legal analysis necessary in this matter. the factual of this is an oversimplification this Although in German. that was executed and written agreement of this lawsuit is a German that it could do so as no pretense law when necessary, it makes Court is able to apply German tribunal. as a German knowledgeably or as efficiently Blanco v. Banco Indus. de Venezuela, S.A. Blanco v. Banco Indus. de Venezuela, the emphasize connections to this action, with specific attention to the bankruptcy issues, German law and resolve this better equipped to apply German court would be much fact that a German expeditiously. matter a potential third party defendant, the existence of lack of jurisdiction over to, this Court's limited NAM York without prejudice resulting from any York without prejudice resulting from is conditionally granted subject to the is conditionally granted subject to 26 strong interest in ensuring that this action is strong interest in forum non conveniens that defendant’s motion to dismiss the plaintiff’s amended complaint with complaint the plaintiff’s amended to dismiss motion that defendant’s with complaint amended the plaintiff’s to dismiss that defendant’s motion complaint amended the plaintiff’s to dismiss that defendant’s motion German law; German the reinstitution of consent to plaintiff’s must adjudicate the case, the defendant lawsuit in the Northern District of New bars. statute of limitations For the foregoing reasons, it is hereby For the foregoing ORDERED ORDERED ORDERED (1) consent to suit in Germany; must Defendant (2) defense(s) available under waive any statute of limitations must Defendant (3) court not recognize the plaintiff’s or decline to the German Should IT IS SO ORDERED. Dated: September 28, 2007 Case 5:01-cv-00882-NAM-GJD Document 72 Filed 09/28/07 Page 26 of 26 26 of Page 09/28/07 Filed 72 Document 5:01-cv-00882-NAM-GJD Case the forum selection clause, the difficulty enforcing a judgment obtained in this Court, the likely obtained in this a judgment the difficulty enforcing selection clause, the forum that the the Court recognizes issues. While the bankruptcy law and of German application States corporation, has a plaintiff, as a United appropriate be a more would that Germany States, the Court believes resolved in the United forum. and lack of due process is denied; and it is further prejudice pursuant to Rule 12(b)(2) clause is denied; and it is further selection of a forum prejudice based upon the existence pursuant to Rule 12(b)(3) and following conditions: NAM