Opinion
00 Civ. 5189 (RCC)
March 28, 2002
OPINION AND ORDER
Plaintiffs TeeVee Toons, Inc., doing business as TVT Records, and Steve Gottlieb Inc., doing business as Biobox (collectively, "TVT"), bring this action against defendant Gerhard Schubert GmbH ("Schubert"), claiming that Schubert improperly manufactured a packaging system commissioned by TVT. TVT seeks damages for fraudulent inducement and negligence, as well as for Schubert's alleged failure to conform the system to the parties' contract terms and to fulfill its guarantee of fitness, as required by the United Nations Convention on Contracts for the International Sale of Goods ("CISG"), 15 U.S.C. App. Schubert now moves to dismiss the Complaint on the basis of lack of contractual privity, absence of an indispensable party, lack of personal jurisdiction and forum non conveniens.
1. BACKGROUND
For purposes of a motion to dismiss, the Court accepts as true the facts alleged by plaintiffs. TVT is one of the largest independent record companies in the United States. Compl. ¶ 12. In the early 1990s, Steve Gottlieb ("Gottlieb"), the founder and president of TVT, invented an improved method for packaging audio and video tape cassettes called the "Biobox." Id. ¶ 13. Unlike other packaging methods utilized by the music industry at that time, the Biobox was to be made from cardboard with a flip-open top, in the manner of a cigarette pack. Id. The Biobox was intended to be biodegradable and difficult to duplicate, thus deterring counterfeiting. Id. TVT obtained a patent on this new design.Id.
After the record industry expressed interest in the proposed packaging, TVT began to look for a manufacturer to design and construct the machinery required to mass-produce the Biobox. Id. ¶ 14. Schubert, a German company, manufactures high speed packaging systems and holds itself out as the European market leader in innovative packaging solutions. Id. ¶ 15. During the period relevant to the Complaint, Schubert marketed its products in the United States through an exclusive agency agreement with Rodico, Inc. ("Rodico"), a New Jersey-based company. Id. ¶ 16. At a trade show in 1994, Gottlieb met with representatives of Rodico and, following the trade show, commenced discussions with two Rodico officers: Dieter Neuber ("Neuber") and Alan Ekstedt ("Ekstedt"). Id. Ekstedt, who identified himself as being the "Schubert National Sales Manager," informed Gottlieb that Schubert possessed the experience and expertise necessary to develop machinery for the production of the Biobox. Id. ¶ 17; see also Declaration of Steve Gottlieb dated January 11, 2001 ("Gottlieb Decl.") ¶ 3.
Through Rodico, Schubert made a specific bid for the Biobox project. Compl. ¶ 17. By a written quotation dated October 28, 1994 (the "1994 Quotation"), Rodico proposed to TVT on behalf of Schubert that Schubert manufacture "One (1) Schubert Automatic Erecting, Loading, and Closing System for a Flip Top Cassette Carton" for a price of $800,000.00, based upon an exchange rate of $ 1.00 to DM1.4920. Id.; Gottlieb Decl. Ex. A. The 1994 Quotation also provided that "[m]achine design and electrical components are based on Schubert standards." Id. Ekstedt signed the document as "Schubert National Sales Manager." Id.
The following month, Rodico representatives introduced Gottlieb to Gerhard Schubert, the founder and principal of the defendant company, at an industry trade show in Chicago. Compl. ¶ 18; Gottlieb Decl. ¶ 5. In advance of that meeting, Rodico transmitted a letter to TVT's New York office requesting that Gottlieb execute a confidentiality agreement because he would be exposed to "fundamental aspects of the proprietary technology held by Schubert." Compl. ¶ 20; Gottlieb Decl. ¶ 6 n. 1. At the trade show, Gerhard Schubert represented that he was personally committed to the Biobox project and that his company had the experience and expertise required to design and manufacture an efficient production system. Compl. ¶ 19; Gottlieb Decl. ¶ 6.
After issuing the 1994 Quotation, Schubert purported to refine its drawings and designs for the Biobox production line. Compl. ¶ 21; Gottlieb Decl. ¶ 7. During this period, Gottlieb communicated directly with Schubert officer Comelis Lindner, who faxed revised designs to TVT's New York office. Gottlieb Decl. ¶ 7. In February 1995, Gottlieb received from Rodico a revised quotation for "One (1) Schubert Automatic Erecting, Loading, and Closing System for a Flip Top Cassette Carton" (the "1995 Quotation"), again signed by Ekstedt as "Schubert National Sales Mgr." Compl. ¶ 21; Gottlieb Decl. Ex. C. The pricing was "ex-works Crailsheim, Germany" and was based on the existing Deutsche Mark exchange rate. Gottlieb Decl. Ex. C. The shipment date was designated as the "[e]nd of September 1995." Id. The 1995 Quotation contained an express warranty that the Biobox system would be free of any defect in material workmanship for at least six months from the date of shipment. Id.
On or about February 6, 1995, Gottlieb met with certain Rodico employees, including Ekstedt and Neuber, at TVT's New York office to review the proposal. Compl. ¶ 22. Soon after that meeting, TVT accepted the 1995 Quotation and paid a 20 percent down payment, in the amount of $172,432.00, to Rodico on behalf of Schubert. Id. ¶ 23.
Schubert did not meet the September 1995 shipment deadline, and repeatedly pushed back the delivery date. Id. ¶¶ 28-35. Although the system failed internal Schubert tests, in late August 1997 Schubert sent the Biobox system to TVT for installation. Id. ¶¶ 36-40. The system performed poorly and did not meet the production rate set forth in the 1995 Quotation. Id. ¶¶ 43-50. Schubert failed to repair the system and by the end of 1999 TVT was forced to halt the project. Id. ¶¶ 51-58. TVT claims that it suffered millions of dollars in damages, including money paid to Schubert for the system and for repairs; money spent on other technicians and equipment to try to fix or replace components; money spent to set up its production facility; money that will have to be spent to replace the facility; money spent on administration of the project; and lost profits. Id. ¶ 59.
II. DISCUSSION
Schubert now moves to dismiss the Complaint on the grounds that TVT's only contract was with Rodico, and that TVT therefore has no claim against Schubert due to lack of contractual privity. In addition, Schubert claims that dismissal is required because Rodico is an indispensable party who cannot be joined in this action. Schubert also argues that the Court should dismiss the action for lack of personal jurisdiction, or alternatively, on the basis of forum non conveniens, in favor of litigation in Germany. The Court will address these arguments in turn.
A. Contractual Privity
When deciding a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must construe in the plaintiffs favor all well-pleaded factual allegations in the Complaint. See Hack v. President Fellows of Yale College, 237 F.3d 81, 88 (2d Cir. 2000), cert. denied, 122 S.Ct. 201 (2001). The Court's consideration is limited to facts stated on the face of the Complaint and in documents appended thereto or incorporated by reference, as well as to matters of which judicial notice may be taken.Automated Salvage Transport, Inc. v. Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d Cir. 1998). Dismissal is proper only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999) (quoting Conley v. Gibson, 355 U.S. 41 (1957)).
Schubert contends that TVT's contract claims under the CISG must be dismissed because 1995 Quotation, by its own terms, demonstrates that Rodico, not Schubert, is the contracting party. Schubert further disclaims any agency relationship with Rodico, arguing that Rodico lacked the authority to bind Schubert to an agreement with TVT.
Dismissal is not appropriate at this stage of the litigation. TVT has pled sufficient facts to suggest that, if true, Rodico was either the actual or apparent agent of Schubert so as to create contractual liability for the principal. Actual agency is created by "direct manifestations from the principal to the agent," whereas apparent authority depends on "some conduct by the principal, communicated to a third party, which reasonably gives the appearance that the agent has the authority to conduct a particular transaction." Reiss v. Societe Centrale Du Groupe Des Assurances Nationales, 235 F.3d 738, 748 (2d Cir. 2000) (internal citations omitted).
The Complaint contains sufficient allegations to create a factual issue as to the existence and scope of either an actual or apparent agency relationship. For example, with respect to actual agency, TVT alleges that Schubert and Rodico were parties to an "exclusive agency agreement." Compl. ¶ 16. In addition, TVT alleges that Alan Ekstedt, the Rodico representative who signed the 1995 Quotation, had the actual authority to bind Schubert because he was Schubert's "National Sales Manager." Id. ¶¶ 16-17, 21. Although Schubert asserts that Ekstedt created that title for his own purposes, see Neubauer Aff. ¶ 17, at this stage of the litigation the Court is required to resolve disputes in plaintiff's favor.
"Schubert acknowledges that it entered into a Distributorship Agreement with Rodico in 1984, but argues that the terms of that Agreement, as interpreted under the applicable German law, only empower Rodico to act as an independent distributor and not as Schubert's agent. Def. Mem. at 6-9; see also Affidavit of Franz Neubauer, Schubert Director of Sales, dated November 30, 2000 ("Neubauer Aff."), Ex. A (Rodico Distributorship Agreement). TVT argues in opposition that the Agreement creates an agency relationship because it appoints Rodico as Schubert's "exclusive sales agent for the U.S.A." and requires Rodico to "(a) exert the greatest effort to sell [Schubert] machines, (b) create an effective sales and service organization to sell [Schubert] machines, (c) advertise and undertake other measures to promote sales [of Schubert machines], (d) maintain a sufficient stock of spare parts for [Schubert machines], and (e) look for Schubert machines as an alternative for other machines if required." Pl. Mem. at 19; see also Rodico Distributorship Agreement §§ 4, 6.
Where the parties disagree as to meaning of the contract, or where the contract terms are ambiguous, it is inappropriate to dismiss the allegation. Microtel Franchise Dev. Corp. v. Country Inn Hotel, 923 F. Supp. 415, 420 (W.D.N.Y. 1996) ("[T]he construction of ambiguous contract provisions is a factual determination that precludes dismissal on a motion for failure to state a claim.") (citing Martin Marietta Corp. v. International Tel. Satellite Organization, 991 F.2d 94, 97 (4th Cir. 1992)). The interpretation of the Distributorship Agreement should wait until the parties have had the opportunity to brief this issue fully in order to present the Court with a complete record.
Furthermore, although Schubert contends that the terms of the contract implicate only Rodico — for example, Schubert points out that the 1995 Quotation was printed on Rodico letterhead, provides for servicing from New Jersey, Rodico's headquarters, and contains terms and conditions for Rodico's benefit — the contract on its face also contains provisions tending to implicate Schubert. Specifically, the packaging system is described as a "Schubert Automatic Erecting, Loading and Closing System," the pricing is "ex works, Crailsheim, Germany," the location of Schubert's headquarters, the payments are based on the Deutsche Mark exchange rate and the design and components are based on "Schubert standards." Gottlieb Decl. Ex. C. Again, at this stage of the litigation, all inferences should be drawn in favor of TVT. TVT has put forth sufficient allegations to create a factual issue as to the existence of an actual agency relationship. See Old Republic Ins. Co. v. Hansa World Cargo Serv., Inc., 51 F. Supp.2d 457, 471 (S.D.N Y 1999) ("New York courts have recognized that the question of the existence and scope of an agency relationship is a factual issue that a court cannot properly adjudicate on a motion to dismiss.").
TVT also has adequately pled the existence of an apparent agency relationship. Apparent authority is created when the words or conduct of the principal, as communicated to a third party, give rise to the appearance and belief that the agent possesses the authority to enter into a transaction. Old Republic Ins. Co., 51 F. Supp. 2d at 475 (citingHallock v. State, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 513 (1984)). Here, TVT alleges that at an industry trade show in November 1994, Rodico representatives introduced Gottlieb to Gerhard Schubert, the founder and principal of Schubert. Compl. ¶ 18; Gottlieb Decl. ¶ 5. At that time, Gerhard Schubert allegedly expressed his enthusiasm about the Biobox project. Compl. ¶ 18. In addition, he represented that the "system that would be designed and built by Schubert, if it was given the contract, would be . . . easy to operate and flexible" and that he himself would be personally committed to the project. Id. ¶ 19. Viewing the allegations in the light most favorable to the plaintiffs, a factual issue exists as to whether these statements created the appearance that Schubert authorized Rodico to contract with TVT on its behalf. Therefore, dismissal is inappropriate at this time.
B. Failure to Join an Indispensable Party
Schubert also asserts that the action must be dismissed for failure to join an indispensable party pursuant to Rule 19 of the Federal Rules of Civil Procedure. According to Schubert, Rodico is indispensable but cannot be made a party to this action because the Distributorship Agreement designates Germany as the exclusive forum for all sales disputes between Schubert and Rodico.
In order to determine whether dismissal is required, the Court applies the test set forth in Rule 19. To begin, the Court first must determine whether the absent person or entity is "necessary." A person is necessary if(1) in the person's absence complete relief cannot be accorded to those already parties or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of the claimed interest. Fed.R.Civ.P. 19(a). Only if the absent person qualifies as necessary under Rule 19(a) and joinder is not feasible does the Court then consider whether the person is "indispensable" under Rule 19(b). Viacom Int'l v. Kearney, 212 F.3d 721, 724 (2d Cir. 2000).
There is no need to reach the indispensability issue because Rodico is not a necessary party here. In Royal Indus. Ltd. v. Kraft Foods, Inc., 926 F. Supp. 407 (S.D.N Y 1996), a breach of contract action closely analogous to the instant dispute, the court denied a similar motion to dismiss under Rule 19. In that case, defendant Kraft argued that the plaintiff had signed the contract at issue not with Kraft but rather with its subsidiary company, therefore making the subsidiary a necessary party. The court disagreed, noting that the complaint alleged that the subsidiary merely acted as Kraft's agent and that Kraft had failed to meet its own contractual obligations. The court held that the absent agent "cannot be considered necessary under Rule 19(a), much less indispensable under Rule 19(b)" because the plaintiff asserted no independent wrongdoing on the agent's part. Id. at 414. In addition, the court determined that "if plaintiff establishes an agency relationship and ultimately prevails at trial, it can obtain complete relief whether or not [the subsidiary] is a party defendant." Id. at 415. See also Nottingham v. General Am. Communications Corp., 811 F.2d 873, 880 (5th Cir.) (noting that Rule 19 does not require the joinder of an agent),cert. denied, 484 U.S. 854 (1987); Wright Miller, 7 Fed. Prac. Proc. Civ. 3d § 1623 (2001) (same).
Here, as in Royal Industries, complete relief can be accorded to the present parties because TVT claims no independent wrongdoing on the part of Rodico; rather, the Complaint alleges that Rodico merely executed the contract as Schubert's agent and that Schubert breached its own contractual obligations by producing a flawed Biobox system. As the Royal Industries court noted, joinder in such a situation would require the plaintiff to proceed against two defendants on conflicting theories of liability: to prevail against the principal, the plaintiff would need to prove agency; whereas to prevail against the agent, the plaintiff would have to disavow the existence of an agency relationship. The Court held that "Rule 19 cannot reasonably be read to require a plaintiff to contradict itself at trial in such a fashion." Royal Industries, 926 F. Supp. at 415 n. 9.
Schubert argues that the failure to join Rodico will create multiple litigation, because Schubert will initiate an indemnity and contribution action against Rodico in the German courts. Def. Mem. at 19. However, the potential for litigation in two separate fora does not render Rodico a necessary party to this action. Cf. New York v. Longboat. Inc., 140 F. Supp.2d 174, 179 (N.D.N.Y. 2001) (noting that alleged joint tortfeasors are not necessary parties because a contribution action can be brought against them in a separate proceeding). There is no basis to dismiss this action based upon the non-joinder of Rodico. Therefore, Schubert's motion pursuant to Rule 19 must be denied.
C. Personal Jurisdiction
Schubert also urges this Court to dismiss this action for lack of personal jurisdiction. When responding to a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that the Court has jurisdiction over the defendant. Bank Brussels Lambert v. Fiddler Gonzalez Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). Where, as here, the parties have conducted jurisdictional discovery but an evidentiary hearing has not been held, the plaintiff must make an averment of facts that, "if credited . . . . would suffice to establish jurisdiction over the defendant." Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.) (internal quotation marks omitted), cert. denied, 519 U.S. 1006 (1996). All pleadings and affidavits "must be construed in the light most favorable to [the nonmovant] and all doubts must be resolved in [its] favor. Landoil Res. Corp. v. Alexander Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990).
In diversity cases, the court looks first to the law of the forum state, here New York, to determine whether personal jurisdiction exists.Whitaker v. Am. Telecasting. Inc., 261 F.3d 196, 208 (2d Cir. 2001). If the exercise of jurisdiction is appropriate under the applicable New York provisions, then the court must consider whether the requisites of due process are satisfied. Whitaker, 261 F.3d at 208 (citing Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997)).
Plaintiff contends that jurisdiction is proper because Schubert transacted business in New York directly or through its agents. See Compl. ¶ 11. Section 302(a)(1) of the New York Civil Practice Law and Rules ("C.P.L.R.") permits the exercise of jurisdiction "over any non-domiciliary, . . . who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state." In order to establish personal jurisdiction based on the dealings of an agent, the plaintiff need not establish a formal agency relationship. Rather, the plaintiff need only show that the agent acted "for the benefit of and with the knowledge and consent of the principal and that the principal exercised some control over the agent in the matter. Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467, 527 N.Y.S.2d 195, 199, 522 N.E.2d 40, 44 (1988).
It is undisputed that Rodico transacted business in New York with TVT — the contract at issue was negotiated here and there was repeated contact between the two companies, including numerous meetings at TVT's New York office. See Declaration of Ruedi Frischknecht dated January 10, 2001 ("Frischknecht Decl.") ¶ 8. The question is whether Rodico's jurisdictional contacts can be attributed to Schubert based on an agency relationship. Here, TVT has set forth a sufficient averment of facts to suggest that they can. As discussed supra, TVT has adequately pled the existence of an actual or apparent agency relationship. At the very least, TVT has submitted evidence tending to show that Rodico acted with the knowledge and consent of Schubert, and that Schubert maintained some control over Rodico.
TVT points to certain correspondence between Rodico and Schubert in which Rodico appraised Schubert of its discussions with TVT and in return received instruction from Schubert. See Frischknecht Decl. ¶¶ 9-10; Exs. B-C. For example, prior to a June 1995 meeting with TVT, Schubert officer Cornelius Linder ("Linder") directed Rodico employee John Gabriel ("Gabriel") to raise certain issues with Gottlieb. Id. ¶ 9; Ex. B. Linder also requested that Gabriel keep him informed about the meeting.Id. On another occasion, Ruedi Frischknecht ("Frischknecht") of Rodico wrote to Franz Neubauer ("Neubauer"), Schubert's Director of Sales, recounting a meeting between himself and Gottlieb in New York City. Id. ¶ 10; Ex. C. At that meeting, Frischknecht had conveyed to Gottlieb Neubauer's intentions regarding modification of the Biobox production system. Id. Frischknecht also informed Neubauer that Gottlieb was requesting more details from Schubert about the proposed changes. Id. Viewing this correspondence in the light most favorable to TVT, it can be taken as indicating that Rodico functioned as Schubert's agent and "mouthpiece" in New York. See Mayer v. Josiah Wedgwood Sons. Ltd., 601 F. Supp. 1523, 1530 (S.D.N.Y. 1985) (upholding jurisdiction where the alleged agent acted as an intermediary).
Moreover, given the showing of agency and given Rodico's substantial contacts with New York, the exercise of jurisdiction over Schubert satisfies the constitutional "minimum contacts" requirement and comports with "traditional notions of fair play and substantial justice."International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Indeed, even aside from Rodico's activities, Schubert itself has had direct contact with this forum relating to the instant dispute. As alleged by TVT, Schubert officer Linder sent written correspondence and placed numerous telephone calls to TVT's New York office in connection with the Biobox project. Gottlieb Decl. ¶¶ 7, 12, 17. Schubert also sent several invoices directly to TVT in New York. Id. ¶ 16. In addition, Gerhard Schubert himself also personally telephoned Gottlieb in New York on several occasions. Id. ¶ 13. At this point in the litigation, TVT has satisfied its burden of showing that the exercise of personal jurisdiction over Schubert is proper.
D. Forum Non Conveniens
Finally, in the event that its other motions are denied, Schubert asks this Court to dismiss this action in favor of litigation in Germany. "[A] court reviewing a motion to dismiss for forum non conveniens should begin with the assumption that the plaintiffs choice of forum will stand unless the defendant meets the burden of demonstrating . . . that "trial in the chosen forum would be unnecessarily burdensome for the defendant or the court.'" Iragorri v. United Techs. Corp., 274 F.3d 65, 71 (2d Cir. 2001) (en banc) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 n. 23 (1981)). Because there is a "strong presumption" in favor of the choice of a United States plaintiff to litigate in his home forum, see Piper, 454 U.S. at 255, Schubert bears a particularly heavy burden to convince this Court that dismissal is warranted. See Iragorri, 274 F.3d at 71-72;see also Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947) (holding that a defendant must make a "clear showing of facts which either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiffs convenience, which may be shown to be slight or nonexistent, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court's own administrative and legal problems").
The Court must make its determination in light of the private and public interest factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947). private interest factors include: the relative ease of access to sources of proof; the availability of compulsory process for attendance of unwilling witnesses; the cost of obtaining attendance of willing witnesses; and all other practical problems that make trial of a case easy, expeditious, and inexpensive — or the opposite. Murray v. British Broadcasting Corp., 81 F.3d 287, 294 (2d Cir. 1996). Public interest factors include: the administrative difficulties flowing from court congestion; the local interest in having controversies decided at home; the interest in having the trial in a forum that is familiar with the law governing the action; the avoidance of unnecessary problems in conflict of laws or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty. Id. at 293.
Before addressing the Gilbert factors, courts generally must first decide whether an adequate alternative forum exists. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 100 (2d Cir. 2000). Here, however, TVT does not contend that the German courts are inadequate.
After taking both private and public interests into account, it is apparent that Schubert has not met the heavy burden required to overcome TVT's choice of forum. In essence, Schubert simply seeks to transfer the inconvenience from itself to TVT. Schubert argues that many of its documents and witnesses will require translation from German to English, and that the cost of transporting its witnesses to the United States will be substantial. However, if the action were moved to Germany, the cost burden and problems of translation would simply fall upon TVT instead. Courts generally refuse to dismiss cases for forum non conveniens in such situations. See Jacobs v. Felix Bloch Erben Verlag fur Buhne Film, 160 F. Supp.2d 722, 743-44 (S.D.N.Y. 2001) (refusing to dismiss case against a German theatrical producer based on transportation and translation burdens because dismissal would merely shift these inconveniences to the plaintiffs, who did not speak German and whose primary witnesses and documents were located in New York); ESL Inc. v. Coastal Power Prod. Co., 995 F. Supp. 419, 429 (S.D.N Y 1998) (refusing to dismiss case where litigation would impose burdens on both parties regardless of whether it was conducted in New York or abroad).
Schubert argues that the burden is less for TVT because TVT already has had "substantial contact" with Germany, in that Gottlieb traveled there for a design meeting with Schubert and to witness the testing of the Biobox system. Def. Mem. at 22. However, Schubert overlooks the fact that Gerard Schubert also visited the United States — he met with Gottlieb at a trade show in Chicago and plaintiffs claim that he frequently travels here. Gottlieb Decl. ¶¶ 24-25. Moreover, this lawsuit is not without a connection to this forum: TVT is principally based in New York, the Biobox was designed here, the contract was negotiated here, all Biobox orders were placed with TVT's New York office, and all of TVT's efforts to launch the system were coordinated from New York. See Gottlieb Decl. ¶ 19.
Schubert's invocation of the public interest factors is similarly unavailing. According to Schubert, dismissal is warranted because its liability turns on issues of German law and New York jurors would be burdened by deciding a case involving German witnesses, documents and business customs. However, Schubert has not demonstrated that German law is applicable to plaintiffs claims; at most, it appears that German law may be applicable only with respect to the Distributorship Agreement — a contention which is in any event hotly disputed by TVT. See Sun Forest Corp. v. Shvili, 152 F. Supp.2d 367. 387 (S.D.N.Y. 2001) (refusing to dismiss case where the parties disputed whether United States or Canadian law would be applicable). Furthermore, as mentioned above, this action does not revolve solely around German witnesses or events; rather, this lawsuit involves events occurring in this forum and involves witnesses from Rodico and TVT who are located in this country.
Finally, Schubert argues that there is a risk of multiple proceedings because any action by Schubert against Rodico must be brought in Germany pursuant to the forum selection clause in the Distributorship Agreement. Although certainly courts should avoid multiplying the litigation, the weight of this fact alone, in light of the other considerations, does not satisfy Schubert's heavy burden of demonstrating that dismissal is warranted.
III. CONCLUSION
For the foregoing reasons, Schubert's motions to dismiss for lack of contractual privity, lack of personal jurisdiction, failure to join an indispensable party and forum non conveniens are DENIED.
The parties are directed to appear before this Court for a status conference on April 19, 2002, at 9:30 a.m.