Moreover, Wocom supplies authority that rejects a corporate agent's short-term United States residence as the basis for jurisdiction over his foreign corporation's claims. In Europe Overseas Commodity Traders v. Banque Paribas London, 940 F. Supp. 528 (S.D.N.Y. 1996), the court held that a foreign corporate investor whose sole shareholder lived in Florida "for most of the time of the investment at issue" could not establish jurisdiction over the foreign defendant's alleged securities fraud. Id. at 535.
Europe and Overseas Commodity Traders, S.A. ("EOC"), a Panamanian corporation, appeals from a final judgment dismissing EOC's complaint pursuant to a Memorandum-Decision of the United States District Court for the Southern District of New York, Barbara S. Jones, Judge, dated June 19, 1996, as amended June 28, 1996. Europe and Overseas Commodity Traders, S.A. v. Banque Paribas London, 940 F. Supp. 528, 530 n. 1 (S.D.N.Y. 1996). EOC's sole business is the investment of its capital in securities and other ventures.
However, in an age of electronic communication, where files are usually kept in digital form, this factor does not carry great weight. Europe Overseas Commodity Traders, S.A. v. Banque Paribas London et al., 940 F. Supp. 528, 537-38 (S.D.N.Y. 1996), aff'd 147 F.3d 118 (2d Cir. 1998) ("[I]n light of technological advances in transportation and communication, this Court recognizes that the location of documents is a factor which is to be given less weight now. . . ."). The location of witnesses is a factor in the private interests analysis carrying greater weight.
However, this private interest factor is about convenience to the parties; thus the presence of the vast majority of witnesses in one forum weighs in favor of that forum, even if the witnesses could be transported. See Europe Overseas Commodity Traders, S.A. v. Banque Paribas London et al., 940 F. Supp. 528, 538 (S.D.N.Y. 1996), aff'd 147 F.3d 118 (2d Cir. 1998) (where nearly all witnesses reside overseas, "transporting witnesses from England to the United States — even if they were within this Court's subpoena power or would appear voluntarily — would be extremely inconvenient and would impose a prohibitive cost on defendants"); Scottish Air Int'l Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1232-33 (2d Cir. 1996) (affirming district court's dismissal on forum non conveniens ground and noting that since vast majority of potential witnesses were residents of Great Britain, "the difficulty, cost, and disruption of requiring the attendance of such witnesses in New York — whether they were willing to appear or not — would be considerable" and this weighed in favor of dismissal). Second, evidence obtained by means of the Hague Convention, which delivers testimony in the form of a judge's summary of a deposition, is a poor substitute for live trial testimony.
However, in an age of electronic communication, where files are usually kept in digital form, this factor does not carry enormous weight. See Europe Overseas Commodity Traders, S.A. v. Banque Paribas London et al., 940 F. Supp. 528, 537-38 (S.D.N.Y. 1996), aff'd 147 F.3d 118 (2d Cir. 1998) ("[I]n light of technological advances in transportation and communication, this Court recognizes that the location of documents is a factor which is to be given less weight now. . . ."). The location of witnesses is a factor in the private interests analysis carrying greater weight.
The location of evidence outside of the United States suggests that a United States federal court may not be the most appropriate forum for a case. See,In re Optimal U.S. Litigation , 886 F. Supp.2d at 307 ("[L]ocation abroad of the vast bulk of the evidence weighs against according significant deference to plaintiffs’ choice of forum."); LaSala v. UBS, AG , 510 F. Supp.2d 213, 225 (S.D.N.Y. 2007) ("Where alleged misconduct is centered in the foreign forum and the majority of evidence resides there, dismissal is favored."); But see,Europe & Overseas Commodity Traders, S.A. v. Banque Paribas London, et al. , 940 F. Supp. 528, 537–38 (S.D.N.Y. 1996) (affording "less weight" to location of documents due to "technological advances in transportation and communication"). Defendants do not address the role of technological advances in transportation and communication with respect to the documentary evidence.
The third factor weighs slightly against the United States as a forum because while Plaintiff has alleged that the United States, and particularly New York, was heavily implicated by Defendants' actions, this is not solely a "local dispute," and none of the parties is a U.S. citizen. See Alfadda et al. v. Fenn et al., 159 F.3d 41, 46 (2d Cir. 1998); Europe Overseas Commodity Traders v. Banque Paribas London, 940 F. Supp. 528, 539 (S.D.N.Y. 1996). The final factor, however, does not weigh in favor of either forum because "[i]n adjudicating plaintiffs' RICO . . . claims, an American court would apply American law.
All of the plaintiffs are American citizens, and although all of the defendants are Canadian citizens, United States courts have a great interest in providing relief to American citizens. See Europe and Overseas Commodity Traders, S.A v. Banque Paribas London, 940 F. Supp. 528, 539 (S.D.N.Y. 1996). United States courts have a special interest in preserving the integrity of American financial markets as well — an interest that should be given due weight.
The factfinder should have the benefit of assessing the demeanor of witnesses at trial. Europe Overseas Commodity Traders S.A. v. Banque Paribas London, 940 F. Supp. 528, 538 (S.D.N.Y. 1996); Fustok v. Banque Populaire Suisse, 546 F. Supp. 506, 511 (S.D.N.Y. 1982). In addition, the parties dispute whether Scott Aylen represented Reitsma individually or ISI.
Additionally, as noted in the district court's opinion in Banque Paribas, the shares at issue in that case were neither registered nor listed on a U.S. securities exchange. See Europe and Overseas Commodity Traders v. Banque Paribas London, 940 F. Supp. 528, 533 (S.D.N.Y. 1996). Here, shares of both GLC and IPI/Diversinet were listed and traded on the NASDAQ, a U.S. securities exchange.