Opinion
NO. 99-CV-0604E(F)
January 3, 2001
Attorneys For The Plaintiff: David Share, Esq., Williamsville, N Y 14221
Attorneys For The Defendant: Alamo Rent-A-Car — Mark A. Molloy, Esq., c/o Nixon Peabody, Buffalo, NY, 14202, Horan Cooze — Tracy A. Kachur, Esq., c/o Altructer Habermehi Callanan, Buffalo, N Y 14203
MEMORANDUM ORDER
Plaintiff commenced this action in the New York State Supreme Court, Erie County, seeking redress for injuries allegedly sustained in an automobile accident that occurred July 7, 1997 in Province of Ontario, Canada. Plaintiff's action was removed to this Court August 27, 1999 on the basis that diversity of citizenship exists among all party opponents. See 28 U.S.C. § 1332. Presently before this Court is a motion to dismiss for lack of jurisdiction over the person brought by defendants Horan and Cooze and, in the event this Court grants the individual defendants' motion, a motion to dismiss on the grounds of forum non conveniens brought by defendant Alamo Rent A Car Inc. ("Alamo"). Each motion will be granted and this case dismissed.
For the purposes of the instant motions, the relevant facts are not in contention among the parties. While traveling upon the Gardiner Expressway in the Province of Ontario as a passenger in a rental vehicle owned by defendant Alamo, a Florida corporation with its principal place of business in Florida, and originally rented in Florida and operated by Gabrielle Deussen — purported to be citizen of Germany but now deceased —, plaintiff, a citizen of New York State, was injured when such rental vehicle collided with a truck driven by defendant Moran and owned by defendant Cooze, both defendants being citizens of Canada and residing in the Province of Ontario. See Compl. ¶¶ 1-6; Notice of Removal ¶¶ 4-7; Horan Cooze Mem. of Law at 1. Moreover, it is undisputed that, from the date of the accident until the present time, neither of the individual defendants has owned property in New York State nor has either transacted business in, or derived business revenue from, New York State. See Notice of Motion Exs. E (affidavit of defendant Horan) F (affidavit of defendant Cooze).
"[P]ersonal jurisdiction over a defendant in a diversity action is determined by reference to the law of the jurisdiction in which the court sits." Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985). In so far as this Court sits in New York State, sections 301 and 302 of New York's Civil Practice Law and Rules ("CPLR") provide the relevant references. Pursuant to CPLR 301, a court may exercise personal jurisdiction over a foreign defendant if such defendant "is engaged in such a continuous and systematic course of `doing business' in New York as to warrant a finding of its presence in this jurisdiction." Delagi v. Volkswagenwerk AG of Wolfsburg, Germany, 29 N.Y.2d 426, 430-431 (1972) (citing Frummer v. Hilton Hotels Int'l, Inc., 19 N.Y.2d 533 (1967)). Even if a defendant is not found to be "doing business" in New York within the meaning of CPLR 301, such defendant may still be subject to personal jurisdiction pursuant to New York's "long-arm" statute — CPLR 302 — "based upon a lesser showing of contacts with the state provided the cause of action arose from such contacts and provided that the exercise of personal jurisdiction will comport with due process requirements. Roberts-Gordon, LLC v. Superior Radiant Products, Ltd., 85 F. Supp. 2d 202, 211-212 (W.D.N.Y. 2000).
CPLR 301 provides that "[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore."
CPLR 302 provides, in relevant part,
"(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: 1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or 2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or 3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or 4. owns, uses or possesses any real property situated within the state."
Citations omitted.
Given that defendants Horan or Cooze are not domiciliaries of New York and otherwise have no physical presence in the United States, do not own any property in New York and have not engaged in any activities in New York which might qualify them as doing business within the meaning of CPLR 301, there is no basis on which this Court may, under such section, exercise personal jurisdiction over defendants Horan or Cooze. Similarly and given the fact that any alleged tortious conduct and its resulting injury occurred in Canada, there is no basis on which this Court may exercise personal jurisdiction over defendants Horan and Cooze pursuant to CPLR 302. Consequently and because this Court lacks personal jurisdiction over defendants Horan and Cooze, this action must be dismissed as against them.
The doctrine of forum non conveniens permits a court to "resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute" — Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947) — if dismissal would "best serve the convenience of the parties and the ends of justice." Kosher v. Lumbermens Mutual Co., 330 U.S. 518, 527 (1947). The decision whether to dismiss an action on the ground of forum non conveniens rests within the sound discretion of the trial court. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). In making this determination, the undersigned must first determine whether there exists an adequate alternative forum. Id., at 254 n. 22. alternative forum is adequate if: (1) the defendants are subject to service of process there; and (2) the forum permits "litigation of the subject matter of the dispute. Alfadda v. Fenn, 159 F.3d 41, 45 (2d Cir. 1998) (quoting Piper Aircraft Co., at 254 n. 22). If an alternative forum does exist, the undersigned must then weigh certain public and private interest factors to determine which forum "will be most convenient and will best serve the ends of justice." Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 46 (2d Cir. 1996). "The public interests include: (1) having local disputes settled locally; (2) avoiding problems of applying foreign law; and (3) avoiding burdening jurors with cases that have no impact on their community. The private interests include: (1) ease of access to evidence; (2) the cost for witnesses to attend trial; (3) the availability of compulsory process; and (4) other factors that might shorten trial or make it less expensive." Alfadda, at 46. However and unless those factors weigh strongly in favor of dismissal, "the plaintiff's choice of forum should rarely be disturbed." Gulf Oil Corp., at 508.
As applied to this case, there is no dispute among the parties that plaintiff's personal injury claims could have been brought in Canada and that such was and is an alternative forum. Moreover and because both the individual defendants — including the alleged tortfeasor — reside in Ontario, Canada, there is no dispute that they would have been subject to service of process there. Consequently, this Court finds that an adequate alternative forum exists in Canada.
"At Oral Argument December 21, 2000, the parties informed the undersigned that the statute of limitations in Canada applicable to the type of injuries suffered by plaintiff was two years from the date of injury, in contrast to the three years afforded plaintiff under New York law. Consequently and should this Court dismiss the instant action, plaintiff's attempt to recommence such in Canada may be time-barred. While such an outcome would certainly be objectionable to plaintiff, the fact that there may exist less favorable conditions for the pursuance of plaintiff's claims in Canada does not undermine Alamo's motion to dismiss on the ground of forum non conveniens, especially where no party has argued that Canadian law is intrinsically inadequate.
Turning to an examination of the public interests applicable to this action, this Court notes that the weight of such interests strongly favors trying the instant action in Ontario, Canada. Firstly, all operative events took place in Ontario. Secondly, it is highly likely that the substantive law to be applied in this action will be that of Ontario and Canada. See Neumeier v. Kuehner, 31 N.Y.2d 121, 128 (1972) (noting that, in situations similar to that before this Court, "the applicable rule of decision will [generally] be that of the state where the accident occurred"). Thirdly and insofar as all allegedly tortious events took place in Ontario, it appears that local jurors would be hearing and determining an action with little impact on their community. Turning to an examination of the private interests applicable to this action, this Court similarly notes that the weight of such interests strongly favors trying the action in Ontario, Canada. Firstly and because all operative events took place there, a Canadian forum is better suited to access the relevant evidentiary materials and witnesses in this action — although it is noted that the United State District Court for the Western District of New York is not so far removed from Ontario, Canada such that these materials and witnesses might not be accessed with comparative ease. Secondly and given the overwhelmingly Canadian flavor of the instant action, it is highly unlikely that this Court could employ any process by which the aforementioned materials and witnesses could be compelled to be brought before it. Finally, the fact that Alamo will not be able to implead the individual defendants — including, of course, the actual tortfeasor — and seek apportionment for the responsibility of plaintiff's injuries among the responsible defendants is a strong factor weighing against this Court's retention of jurisdiction over plaintiff's action. See Karlitz v. Regent Int'l Hotels, Ltd., No. 95 Civ. 10136 LAP, 1997 WL 88291, at *2 (S.D.N.Y. Feb. 28, 1997). Taken as a whole, this Court consequently finds that, because an alternative forum exists and because both public and private interest factors show that a Canadian forum will be most convenient and will best serve the ends of justice, dismissal of the instant action as against Alamo should be granted on the ground of forum non conveniens.
Accordingly, it is hereby ORDERED that this action is dismissed without prejudice as against defendants Horan and Cooze for lack of jurisdiction over their persons, that this action is dismissed without prejudice as against defendant Alamo Rent A Car Inc. on the ground of forum non conveniens and that this case shall be closed in this Court.
Buffalo, N.Y., January 3, 2001.
John T. Elffin, S.U.S.District Judge.