Opinion
04 Civ. 3260 (RWS), 01 Civ. 9468 (RWS).
September 16, 2004
MATTHEW B. KREPPS, Roslindale, MA, Plaintiff, Pro Se.
KENNETH G. ROBERTS, ESQ., JARRETT M. BEHAR, ESQ., Of Counsel, WOLF, BLOCK, SCHORR and SOLIS-COHEN, New York, NY, Attorneys for Plaintiff The Economist's Advocate.
MICHAEL C. MILLER, ESQ., YORAM J. MILLER, ESQ., Of Counsel, SHAPIRO MITCHELL FORMAN ALLEN MILLER, New York, NY, Attorneys for Defendants Insead and Insead Online.
OPINION
Defendants Insead and Insead Online (collectively, "Insead") have moved to dismiss both of the above-captioned actions forforum non conveniens, or, alternatively, to consolidate the actions. Plaintiff Matthew Krepps ("Krepps"), proceeding pro se in the more recent of the two actions, Krepps v. Insead, No. 04 Civ. 3260 (RWS) (the "Krepps Action"), has opposed the motion, as has the Economist's Advocate, LLC ("EA"), the plaintiff in the older of the two actions, Economist's Advocate LLC v. Cognitive Arts Corp., No. 01 Civ. 9468 (RWS) (the "EA Action"). The remaining defendant in the EA Action, Cognitive Arts Corp., has made no appearance with regard to the instant motion, which is granted in part and denied in part as set forth below.
Prior Proceedings
EA commenced the EA action on October 29, 2001. Discovery proceeded thereafter, various motions were briefed by the parties and disposed of by the Court, and discovery was completed on June 16, 2004. By an opinion of April 6, 2004, Insead's and EA's motions for summary judgment were denied, see Economist's Advocate LLC v. Cognitive Arts Corp., No. 01 Civ. 9468 (RWS), 2004 WL 728874 (S.D.N.Y. Apr. 6, 2004), and Insead's subsequent motion for reconsideration was denied in an opinion dated August 18, 2004. See Economist's Advocate LLC v. Cognitive Arts Corp., No. 01 Civ. 9468 (RWS), 2004 WL 1878795 (S.D.N.Y. Aug. 23, 2004). Familiarity with the factual and procedural history set forth in both of these opinions is presumed. Trial in the EA action has been set for November 1, 2004.
Krepps commenced the Krepps Action on April 29, 2004, and Insead filed an answer to Krepps' complaint on May 27, 2004. Insead's subsequent motion to stay discovery pending resolution of the motion to dismiss for forum non conveniens was granted on August 11, 2004 to the extent that depositions were stayed, although document production was to proceed.
Insead's motion to dismiss was filed on July 6, 2004. Following briefing by the parties oral arguments were heard on the motion on September 8, 2004, at which time the motion was deemed fully submitted.
Discussion
Insead does not challenge the validity of this Court's jurisdiction but, instead, argues that "`the balance of conveniences'" favors dismissal of both actions under the doctrine of forum non conveniens. Iragorri v. United Tech. Corp., 274 F.3d 65, 71 (2d Cir. 2001) (en banc) (quoting Piper Aircraft v. Reyno, 454 U.S. 235, 256 n. 23 (1981)).
The equitable doctrine of forum non conveniens allows a court to dismiss an action when "the convenience of the parties and the ends of justice would best be served" by such dismissal. Murray v. British Broad. Corp., 81 F.3d 287, 292-93 (2d Cir. 1996). Dismissal for forum non conveniens is appropriate even if the court is a permissible venue and has proper jurisdiction over the claim. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947); PT United Can Co. Ltd. v. Crown Cork Seal Co., 138 F.3d 65, 73 (2d Cir. 1998). District courts have discretion to decide whether to dismiss for forum non conveniens. See Piper Aircraft, 454 U.S. at 257; Alfadda v. Fenn, 159 F.3d 41, 45 (2d Cir. 1998).
There are several steps involved in resolving a motion to dismiss for forum non conveniens. First, the court must decide what degree of deference is owed to plaintiff's choice of forum.See Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 70 (2d Cir. 2003), cert. denied, 124 S. Ct. 1145 (2004). Where, as here, the plaintiff has brought suit in his home forum, considerable deference is normally accorded to the plaintiff's choice of forum. See Piper Aircraft, 454 U.S. at 255-56 (noting that "a plaintiff's choice of forum is entitled to greater deference when the plaintiff has chosen the home forum");see also Pollux Holding, 329 F.3d at 71 (observing that, "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed") (quotingGilbert, 330 U.S. at 508) (internal quotation marks omitted);Iragorri, 274 F.3d at 70-71 (same). Next, the court must determine whether an adequate alternative forum is available. See Pollux Holding, 329 F.3d at 70. If an adequate alternative forum is available, the court must then consider the relevant private and public interest factors described in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947), and determine whether "the balance of convenience tilts strongly in favor of trial in the foreign forum." R. Maganlal Co. v. M.G. Chem. Co., 942 F.2d 164, 167 (2d Cir. 1991).
A motion to dismiss for forum non conveniens is to be assessed in view of the status of the litigation at the time the motion was filed. See Lony v. E.I. DuPont de Nemours Co., 935 F.2d 604, 614 (3d Cir. 1991); Bank of Crete, S.A. v. Koskotas, No. 88 Civ. 8412 (KMW), 1991 WL 280714, at *5 (S.D.N.Y. Dec. 20, 1991); see also Alnwick v. European Micro Holdings, Inc., 281 F. Supp. 2d 629, 647 (E.D.N.Y. 2003). Such a motion brought late in a litigation, while not barred as untimely, is generally disfavored "because a defendant's dilatoriness promotes and allows the very incurrence of costs and inconvenience the doctrine is meant to relieve." In re Air Crash Off Long Island New York, on July 17, 1996, 65 F. Supp. 2d 207, 210 (S.D.N.Y. 1999) (quotation marks and citations omitted);see also Jacobs v. Felix Bloch Erben Verlag fur Buhne Film und Funk KG, 160 F. Supp. 2d 722, 744 (S.D.N.Y. 2001) (stating that the defendant's failure to move to dismiss for forum non conveniens "until two and a half years after the action commenced further weakens its claim of inconvenience");Breindel Ferstendig v. Willis Faber Dumas Ltd., No. 95 Civ. 7905 (SHS), 1996 WL 413727, at *3 n. 1 (S.D.N.Y. July 24, 1996) (noting that the delay in bringing a forum non conveniens motion would be considered in determining whether the selected forum was inconvenient).
As to the EA Action, Insead's motion to dismiss is denied. Assuming, arguendo, that France represents an adequate alternative forum as Insead argues, the balance of the public and private factors, including the parties' relative ease of access to sources of proof and the avoidance of unnecessary problems in the application of the relevant law, does not weigh in Insead's favor to the extent necessary to overcome the deference due EA's choice of forum. Moreover, the timing of Insead's motion, which was brought nearly three years after this action was commenced and only a few months before the matter is due to proceed to trial, further supports denial of Insead's motion as to the EA action.
With regard to the Krepps action, however, Insead's motion is granted. Although the Krepps action, by virtue of both its recent vintage and the claims involved, may be more suited for dismissal for forum non conveniens than the EA action, the merits of Insead's motion need not be reached in light of certain representations by Krepps in his opposition to Insead's motion. Specifically, in his opposition to Insead's motion, Krepps declared:
Given the extreme prejudice that would result from consolidation of the two cases for trial, in the event the Court determines that the Krepps action and the EA action should be consolidated for trial, I respectfully withdraw my opposition to Insead's motion to dismiss the Krepps action on forum non conveniens grounds in order to avoid prejudicing EA in its longstanding attempt to recover monies owed by Insead to EA.
(Memorandum of Law and Declaration of Matthew B. Krepps, dated July 29, 2004, at 16.) Even in the case that Insead's motion to dismiss the Krepps action were denied, consolidation of the EA action and the Krepps action would be appropriate here as they appear to involve, at least in part, common questions of fact.See Fed.R.Civ.P. 42(a); Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir. 1990). This determination in turn triggers withdrawal of Krepps' opposition to the motion to dismiss in accordance with his written submission. Accordingly, Insead's motion to dismiss the Krepps action for forum non conveniens is granted, and the Krepps action is dismissed without prejudice.
Conclusion
For the reasons set forth above, Insead's motion is granted in part and denied in part, and the Krepps action, docket number 04 Civ. 3260, is dismissed without prejudice.
It is so ordered.