OPINION AND ORDER

SHIRA A. SCHEINDLIN, U.S.D.J.

Ingram Micro, Inc. ("Ingram Micro"), on behalf of itself and as subrogee of Chubb Insurance Company of Europe, S.A. ("Chubb"), brings this action against Airoute Cargo Express, Inc. ("Airoute"). Ingram Micro alleges that Airoute breached its duties and obligations as a bailee of goods by failing to deliver those goods. Airoute filed its Third-Party Complaint ("TPC") against Livraison Rapide Paquin, Inc. ("Paquin"), a Canadian trucking company, seeking indemnification for any damages relating to the failure to deliver those goods.

Both defendant and third-party defendant now move to dismiss the complaints against them on the ground of forum non conveniens. Alternatively, third-party defendant Paquin moves to dismiss all claims for insufficient service of process pursuant to Rule 12(b)(5). If service of process is found insufficient, Airoute seeks an extension of time to serve Paquin.

I. BACKGROUND

Ingram Micro, a Delaware corporation with its principal place of business in Santa Ana, California, is a wholesale provider of technology products and services. See Amended Complaint ("Am. Compl.") ¶ 3. On November 13, 1997, Ingram Micro, from its California office, placed an order with Canada Corel Corporation (U.S.A.) ("Corel") for 3,099 units of software. See id. ¶ 7; 12/20/00 Affidavit of Patrick Healy ("Healy Aff."), Ingram Micro's Transportation Analyst, ¶ 6. Ingram Micro hired Airoute, a Canadian corporation from Dorval, Quebec, to ship and deliver the entire order to Ingram Micro's distribution center in Harrisburg, Pennsylvania. See Am. Compl. ¶¶ 5, 8. On November 13, 1997, Corel delivered the software to Airoute for delivery to the distribution center. See id. ¶ 7. The entire shipment, consisting of 620 boxes, is valued at $719,855.25. See id. ¶ 12.

Ingram Micro did not declare a value for the shipment when it was placed in Airoute's possession. See Answer TPC ¶ 19. If a value had been declared, Airoute would have been required to purchase supplemental insurance coverage. See id.; see also Airoute's Bill of Lading for Ingram Micro Delivery ("Airoute BOL"), Ex. B-3 to Reply Memorandum of Law of Defendant and Third-Party Plaintiff Airoute ("Airoute Reply"), ¶ A. Without a declared value, the alleged maximum default coverage for shipments, as stipulated by Airoute's bill of lading, is the "lesser of $100.00 per merchandise or $2.00 per pound." See Answer TPC ¶ 20; see also Airoute BOL, Ex. B-3 to Airoute Reply, ¶ A.

Airoute delivered the boxes that same day to its subcontractee, Paquin, a Canadian corporation from Montreal, Quebec, who it hired to make final delivery. See Am. Compl. ¶¶ 6, 15. Upon the transfer, Paquin gave Airoute a separate bill of lading. See Memorandum of Law of Third-Party Defendant Paquin in Support of Defendant Airoute's Motion to Dismiss ("Paquin Reply") at 2-3. The terms of the Paquin bill of lading differed from the one issued by Airoute. See id.; see also Paquin's Bill of Lading, Ex. B to Paquin Reply, at 1-4. Before transporting the shipment to its final destination in Pennsylvania, Paquin stored the shipment in trailers at its freight yard in Candiac, Quebec. See Answer TPC ¶ 21. Shortly thereafter, the Paquin freight yard was burglarized and the entire software shipment was stolen. See id. A police report was immediately filed with the local authorities. See 10/20/00 Declaration of Rene Paquin ("Paquin Decl."), President of Third-Party Defendant Paquin, ¶ 6. Airoute and Paquin also posted a $25,000 reward for the recovery of the shipment. See Answer TPC ¶ 23.

On December 18, 1997, Canadian authorities recovered 993 of the 3,099 units. See id. ¶ 25. The recovered goods were immediately sent to Ingram Micro's Pennsylvania distribution center. See id.; see also Healy Aff. ¶ 5. The recovered goods were valued at $215,549.25. See Answer TPC ¶ 25. On April 16, 1998, Airoute, on Ingram Micro's behalf, demanded $510,000 from Paquin. See id. ¶ 26.

On May 31, 2000, Ingram Micro filed its Amended Complaint naming Airoute as a defendant. Specifically, plaintiff claims that Airoute, acting with "negligence, gross negligence, and willful and wanton disregard of its duties," breached "its duties and obligations as a common carrier and bailee of the goods." Am. Compl ¶ 9. Ingram Micro seeks the recovery of $719,855.25, the entire value of the shipment, on behalf of itself and Chubb. See id. ¶ 18.

On June 9, 2000, Airoute filed its Answer and TPC against Paquin for indemnification of any liability it may incur. Airoute alleges that Paquin is solely responsible due to the negligence that allowed the theft to occur. See Answer TPC ¶ 28.

II. DISCUSSION

A. Legal Standard

In considering a motion to dismiss on forum non conveniens grounds, "the court determines where litigation will be most convenient and will serve the ends of justice." PT United Can Co. v. Crown Cork Seal Co., 138 F.3d 65, 73 (2d Cir. 1998). The Second Circuit recently stated that "a district court enjoys wide discretionary latitude" when making this decision. DiRienzo v. Philip Servs. Corp., 232 F.3d 49, 57 (2d Cir. 2000).

1. Jurisdiction Over Parties

In order to obtain personal jurisdiction over a party, that party must be properly served. See Fed.R.Civ.P. 4(k). If service is insufficient, a defendant may move to dismiss. See Fed.R.Civ.P. 12(b)(5) (insufficiency of service of process). Additionally, in diversity actions, complete diversity among the parties must exist and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332 (a).

2. Adequate Alternative Forum and the Gilbert Factors

Assuming personal jurisdiction over a defendant is proper, a court must then apply a two-part test used to determine whether the action should be dismissed on the ground of forum non conveniens. See DiRienzo, 232 F.3d at 56-57; PT United, 138 F.3d at 73; Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 46 (2d Cir. 1996). The defendant must first show that an adequate alternative forum exists. See DiRienzo, 232 F.3d at 56. If it does, the defendant then has the burden to establish that the balance of private and public interests weighs sufficiently in favor of the alternative forum and overcomes the deference given a plaintiff's choice of forum. See id. at 56-57; see also Value Partners v. Bain Co., No. 98 Civ. 1562, 1998 WL 336648, at *2 (S.D.N.Y. June 22, 1998) ("As a general rule, a plaintiff's choice of forum is to be respected unless the balance of private and public interest factors strongly favors the defendant.") (citing Gulf Oil, 330 U.S. at 508). The deference afforded a plaintiff's choice of forum is greater when a home forum is chosen over a foreign one. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981) ("When the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable."); see also R. Maganlal Co. v. M.G. Chemical Co., 942 F.2d 164, 168 (2d Cir. 1991). Nonetheless, the foreign status of a plaintiff is not a dispositive factor. See Maganlal, 942 F.2d at 168.

In deciding whether the deference given to a plaintiff's choice of forum is outweighed by other considerations, the Second Circuit applies the factors outlined in Gulf Oil to determine whether the private and public interests favor dismissal. The private interest factors include:

(1) the relative ease of access to sources of proof; (2) the availability of compulsory process for attendance of unwilling witnesses; (3) the cost of obtaining attendance of willing witnesses; (4) the possibility of viewing the premises, if viewing would be appropriate to the action; and (5) all other practical problems that make trial of a case easy, expeditious and inexpensive.

DiRienzo, 232 F.3d at 66.

The public interest factors are:

(1) the administrative difficulties resulting from court congestion; (2) the imposition of jury duty on people of a community which has no relation to the litigation; (3) the local interest in having controversies decided at home; and (4) the avoidance of unnecessary problems in the application of foreign law.

Id. at 63. "A single factor is rarely dispositive" when analyzing either the private or public interests. Id. at 57.

B. Airoute's Motion to Dismiss for Forum Non Conveniens

1. Subject Matter Jurisdiction

Airoute asserts that this Court lacks subject matter jurisdiction over this action because the amount in controversy does not exceed $75,000. See Answer TPC ¶¶ 1-2; see also 28 U.S.C. § 1332(a). Airoute alleges that its bill of lading limits its liability to an amount far less than $75,000.

"The amount in controversy is determined at the time the action is commenced." Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994). "It is well settled that 'the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.'" Chase Manhattan Bank, N.A. v. American Nat. Bank and Trust Co. of Chicago, 93 F.3d 1064, 1070 (2d Cir. 1996) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)). The Second Circuit has also held that "'the legal impossibility of recovery must be so certain as virtually to negative the plaintiff's good faith in asserting the claim. If the right of recovery is uncertain, the doubt should be resolved . . . in favor of the subjective good faith of the plaintiff.'" Tongkook Am., 14 F.3d at 785-86 (citation omitted).

Airoute has not shown to a legal certainty that this claim is below $75,000. Though the bill of lading may ultimately limit the amount plaintiff may recover, such a determination is premature. Indeed, the parties dispute whether the bill of lading is enforceable and whether plaintiff was given an opportunity to purchase additional insurance. See 3/1/01 Transcript of Hearing at 3-4. Therefore, the $719,855.25 sought in the Complaint is controlling. See Wolde-Meskel v. Vocational Instruction Project Community Servs., Inc., 166 F.3d 59 (2d Cir. 1999) ("Legal certainty is analyzed by what appears on the face of the complaint"). Accordingly, this Court has subject matter jurisdiction over this action.

2. Plaintiff's Choice of Forum

An American citizen's home forum is defined as any United States court, not just the district in which the plaintiff is a resident or citizen. See Guidi v. Inter-Continental Hotels Corp., 224 F.3d 142, 146 (2d Cir. 2000). Because Ingram Micro is an American citizen, any United States district court is considered its home forum and its choice of forum is entitled to deference. See DiRienzo, 232 F.3d at 62-63; but see Reid-Walen v. Hansen, 933 F.2d 1390, 1395 (8th Cir. 1991) (citizenship partially discounted when corporation does extensive international business).

3. Adequate Alternative Forum

Ingram Micro does not dispute Airoute's allegation that Canada is an adequate forum. See 12/27/00 Memorandum of Law by Plaintiff Ingram Micro in Opposition to Defendant Airoute's Motion to Dismiss on Grounds of Forum Non Conveniens ("Pl. Opp.") at 3. Furthermore, because Airoute is amenable to process in Canada, it is an available forum for this action. See DiRienzo, 232 F.3d at 57. I turn now to an analysis of the Gilbert factors.

4. The Gilbert Factors

a. Private Interests Factors

"The private interest factors 'examine the relative convenience of the parties to the litigation.'" See Value Partners, 1998 WL 336648, at *3 (quoting Beeksman v. J.P. Morgan, 945 F. Supp. 90, 93 (S.D.N Y 1996)). Airoute argues that "all the important factors militate in favor of [the] alternative forum . . . ." Memorandum of Law of Defendant Airoute in Support of Its Motion to Dismiss ("Airoute Mem.") at 3.

Airoute first argues that all witnesses and documents are in Canada. In an affidavit of its corporate director, Paul Gervais, Airoute asserts that relevant witnesses are in Canada. See 11/17/00 Affidavit of Paul Gervais ¶ 4. Though essential witnesses may be in Canada, Airoute has failed to meet its burden of identifying those witnesses. Airoute has neither provided their names nor described the proof these witnesses would provide. Such a conclusory assertion is insufficient. See also G.B.C. Nigeria (Ltd.) v. M.V. Sophia First, 588 F. Supp. 76, 79 (S.D.N.Y. 1984) (conclusory affidavit is given little weight in deciding motion to dismiss for forum non conveniens). By comparison, plaintiff has listed seven witnesses in the United States. See Healy Aff. ¶¶ 4-9; see also Calandriello Aff. ¶¶ 2- 3. If there are any remaining witnesses who cannot be compelled to appear in this Court, they may give testimony through letters rogatory. See Maganlal, 942 F.2d at 169.

Defendant further argues that all the necessary documents are located in Canada, and many are in French. See Airoute Mem. at 3. Generally, if a large portion of the documents are in a foreign forum and are written in a language other than English, courts favor dismissal. See Blanco v. Banco Indus. de Venezuela, 997 F.2d 974, 982-83 (2d Cir. 1993) (most documentary evidence was written in Spanish and would require translation). However, the need for translation of these documents alone "is not a hardship of sufficient magnitude to justify dismissal." Update Art, Inc. v. Maariv Israel Newspaper, Inc., 635 F. Supp. 228, 233 (S.D.N.Y. 1986) (denying forum non conveniens motion where documents needed to be translated because other factors did not weigh heavily in favor of dismissal) (quotation marks and citation omitted). Moreover, defendant has not shown that it would be a great burden to transport the documents. The relevant documents are the bill of lading (which is in both English and French) and the receipt documents. See Airoute Reply at 3; Airoute BOL, Ex. B-3 to Airoute Reply; Healy Aff. ¶¶ 8-9.

Airoute also argues that the trier of fact may need to view Paquin's premises, where the burglary occurred. See Airoute Mem. at 3. However, viewing the premises is not necessary because the burglary is not relevant to this dispute. If necessary, photographs of the site should be sufficient.

In sum, the private interests do not favor dismissing the action on forum non conveniens grounds. There are few, if any, witnesses and documents that are not already in the United States. I turn, now, to the public interest factors.

b. Public Interest Factors

The first factor is the relative congestion of the courts' dockets. While the Southern District of New York is a busy court, Airoute has offered no evidence that the alternative forum is any less busy. See DiRienzo, 232 F.3d at 63 (comparing Ontario courts to the courts of the Southern District of New York and finding that congestion in both courts was similar). This factor is neutral and does not favor either party.

The next factor relates to the local interest in the dispute. As noted earlier, an American citizen's home forum is deemed to be any United States court. See supra Part II.B.2; Guidi, 224 F.3d at 146. Here, Ingram Micro placed the order and made shipping arrangements from California, expected delivery in Pennsylvania, and was insured by a New York company. The harm suffered by Ingram Micro is of local interest to the United States and an American jury has an interest in evaluating that harm. See DiRienzo, 232 F.3d at 63 ("Where American investors have allegedly suffered harm from purchases they made in the United States, local juries have an interest in redressing that harm.").

The final factor is "avoiding difficult problems in conflict of laws and the application of foreign law." Id. (emphasis added). Assuming, arguendo, that Airoute is correct and Canadian law applies, it is well established that this is not a sufficient reason to dismiss. See Boosey Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481, 492 (2d Cir. 1998) ("While reluctance to apply foreign law is a valid factor favoring dismissal under Gilbert, standing alone it does not justify dismissal."). Moreover, Airoute has not demonstrated that the application of Canadian law would be difficult.

Because Airoute has failed to establish that the balance of the public and private interests favor the alternative forum, its motion to dismiss is denied.

C. Paquin's Motion to Dismiss For Improper Service Under the Hague Convention

Paquin alleges that the process served on it was insufficient under Article 5, ¶ 3 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("Hague Convention"), and therefore the action against it should be dismissed pursuant to Rule 12(b)(5). See Hague Convention, Nov. 15, 1965, art. 5, ¶ 3, 20 U.S.T. 361, TIAS 6638; see also Memorandum of Law of Third-Party Defendant Paquin in Support of Its Motion to Dismiss ("Paquin Mem.") at 11 (citing Jerge v. Potter, No. 99-CV-0312E(F), 2000 WL 1160459, at *2 (W.D.N Y Aug. 11, 2000) (service on a receptionist of a corporation and not an agent, director or officer of the corporation was deemed improper under the Hague Convention, in accordance with Ontario laws)). Specifically, Paquin alleges that the Complaint it received lacked a French translation and that it was served by a private process server, not the Central Authority as required by Article 2 of the Hague Convention. See Paquin Mem. at 11; see also Hague Convention, Canadian Accession Notification ("Acc. Not.") at § 2.4 (pertaining to art. 5, ¶ 3). No party disputes that the Hague Convention is controlling. Nonetheless, Paquin's argument lacks merit.

Article 5, ¶ 3 applies only when service is made by the Central Authority. See Hague Convention, art. 2 ("Each contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other contracting States and to proceed in conformity with the provisions of [only] articles 3 to 6."); see also United States v. Islip, 18 F. Supp.2d 1047, 1055 (Ct. Int'l Trade 1998) (Art. 5 restrictions apply only when the service is made through the Central Authority). The Hague Convention also authorizes service of process through diplomatic or consular agents, postal channels, judicial officers, officials or competent persons. See Hague Convention, arts. 8-10, 20 U.S.T. 361. Service by these alternate means does not need to conform to the service regulations imposed on the Central Authority. See Hague Convention, art. 2, 20 U.S.T. 361.

Article 10(c) governs this type of service. Canada declined to object to this Article when it became a signatory State, thereby permitting service of process through a competent person. See Hague Convention, Acc. Not. III ("On accession, Canada has not declared to object to methods of service of Article 10, subparagraphs b) and c).").

Paquin does not argue that service was not done by a "competent person." See Koehler v. Dodwell, 152 F.3d 304, 307-08 (4th Cir. 1998) (competent person defined as someone who is permitted to serve in the foreign country). Accordingly, service on Paquin was proper and the motion to dismiss for lack of jurisdiction is denied.

D. Paquin's Motion to Dismiss for Forum Non Conveniens

Because Paquin is amenable to service of process in Canada, that forum is available, and, in Paquin's view, is more appropriate. I therefore turn directly to the Gilbert factors.

Unlike the main action, all the witnesses and documents relevant to the third-party action are in Canada. See Airoute Mem. at 3; Paquin Mem. at 5. Most of the documents are written in French and the witnesses mainly speak French. See, e.g., Paquin Decl. ¶¶ 5, 6, 8, 10. A court in the province of Quebec can more easily require the compulsory attendance of its own citizens. See Airoute Mem. at 3; Paquin Mem. at 7. The cost of witnesses appearing in Quebec is surely less than the cost of appearing in New York. See Airoute Mem. at 3; Paquin Mem. at 7.

Finally, viewing the site of the burglary, which is directly at issue in the third-party action, would be more easily accomplished in Quebec. See Airoute Mem. at 3; Paquin Mem. at 7-8.

The public interest factors also support dismissal of the third-party action. As discussed earlier, there is no indication that the courts of Quebec are any more or less congested than this Court. See DiRienzo, 232 F.3d at 63. Moreover, there is virtually no local interest in this dispute. The indemnification claim is between two Canadian companies. The only connection the third-party action has to this forum is if Airoute prevails, it can use its recovery to satisfy Ingram Micro's claim. See id. (dismissal is proper when "issue ha[s] little or no connection with the U.S."). Furthermore, the burglary occurred in Canada, which has an interest in redressing any harms to its citizens. See id. at 63.

Finally, citing Allstate Life Ins. v. Linter Group Ltd., 994 F.2d 996, 1002 (2d Cir. 1993), Airoute asserts that dismissal would be a waste of judicial resources and could result in inconsistent verdicts. See Airoute Mem. at 5. In that case, the court held that severing the third-party action from the main action would "create a risk of inconsistent judgments" and "represent[ed] a waste of judicial resources." Allstate, 994 F.2d at 1002. However, all the defendants in that action, including the third-party defendants, acted jointly in a single transaction and both the main action and third-party action were premised on this transaction. See id. at 997-98, 1001-02. By contrast, the main action and the third-party action in this Court involve two separate and severable transactions. Little, if any, judicial resources would be saved by hearing both actions in one forum because the operative facts in each action are different. See Olympic Corp. v. Societe Generale, 462 F.2d 376, 378-79 (2d Cir. 1972) (main action retained because the transactions and sources of proof were in both the United States and France while third-party action dismissed because it concerned only French citizens and all transactions and sources of proof were in France).

Paquin has demonstrated that based on all the circumstances, the interests of justice would best be served by continuing this action in Canada. Accordingly, Paquin's motion to dismiss is granted.

III. CONCLUSION

For the reasons discussed above, Airoute's motion to dismiss the main action for forum non conveniens is denied, but Paquin's motion to dismiss the TPC is granted. This dismissal is subject to the following conditions:

1. If the Canadian court refuses to exercise jurisdiction, or Paquin refuses to submit to its jurisdiction, Airoute may move to restore the action in this Court; and

2. Paquin waives any statute of limitations defense that may have arisen since the commencement of this action.

The Clerk of the Court is directed to close the third- party action. A conference is scheduled in the main action for April 4, 2001, at 3:30 p.m.

SO ORDERED: