Opinion
04 Civ. 2797 (DC).
November 3, 2004
KREINCES ROSENBERG, P.C., Attorneys for Plaintiff. By: Leonard Kreinces, Esq., Westbury, New York.
CICHANOWICZ, CALLAN, KEANE, VENGROW TEXTOR, LLP, Attorneys for Defendant. By; Paul M. Keane, Esq., New York, New York.
MEMORANDUM DECISION
In this maritime case, plaintiff Sam Jin World Trading, Inc. ("Sam Jin") seeks to recover from defendant CMA-CGN (America) Inc. ("CMA-CGN") for damage to three shipments of pumpkins from Trinidad to the United States. The cargo was shipped by CMA-CGN, pursuant to express bills of lading. CMA-CGN moves to dismiss the complaint on the basis of a forum selection clause requiring that any suit be filed in Marseilles, France. Sam Jin opposes and apparently requests, in the alternative, that the Court maintain jurisdiction until discovery is completed.
The precise factual and legal issues raised by the present motion were raised in a similar motion to dismiss involving the same defendant, filed in the Southern District of New York. In Ana Distribution, Inc. v. CMA-CGM (America) Inc., 329 F. Supp. 2d 565 (S.D.N.Y. 2004), Judge Rakoff held that the forum selection clause applied and consequently granted the motion to dismiss.
For the reasons stated in Judge Rakoff's carefully considered decision, I likewise conclude that the forum selection clause is not fundamentally unfair and will not deprive plaintiff of its day in court, because discovery is available to plaintiff in France. Consequently, I likewise hold that the forum selection clause requiring suit in Marseilles, France applies and hence defendant's motion to dismiss is granted.
In addition, plaintiff's motion for discovery is denied. Although plaintiff makes no formal motion, plaintiff apparently requests that the Court delay deciding this motion and order discovery while it is pending. Specifically, plaintiff asks the Court to "apply the spirit" of Fed.R.Civ.P. 56(f), without providing any facts to support the need for discovery. (Pl.'s Mem. Opp. Motion to Dismiss ("Pl.'s Mem.") at 9). Plaintiff voices its frustration with defendant's alleged noncompliance with discovery, but makes no factual showing that discovery is necessary to oppose plaintiff's motion. Cf. Fed.R.Civ.P. 56(f). Rather, plaintiff makes clear that the discovery it requests is entirely related to the merits of its claim, based on its fear that no discovery is available in France. (See Pl.'s Mem. at 4-6, 7, 9). As Judge Rakoff discussed in Ana Distribution, discovery is available in France. 329 F. Supp. 2d at 568. The Court will not maintain jurisdiction over a claim, in the face of an enforceable forum selection clause, based merely on plaintiff's "unsupported request for discovery." Id.
The complaint is dismissed without prejudice to the filing of suit by plaintiff against defendant in the courts of Marseilles, France. The Clerk of Court shall enter judgment accordingly and close this case.
SO ORDERED.