Banculescu v. Compania Sud Americana De Vapores
Cite as: Banculescu v. Compania Sud Americana De Vapores, SA, 11 Civ. 2681 (ALC), NYLJ 1202583133768, at *1 (SDNY, Decided November 20, 2012)
District Judge Andrew Carter
Decided: November 20, 2012
OPINION & ORDER
Plaintiff Stefan Banculescu brings the present suit against Defendants Compania Sud Americana De Vapores, SA, CSAV Itajai, Peter Dohle Schiffsbeteiligungs-KG (GmbG & Co.), and Dohle Personalmanagement (GmbH & Co. K.G.), alleging negligence, recklessness, carelessness, breach of warranty, maritime products liability, maintenance and cure, and unseaworthiness. Plaintiff asserts that this Court has subject matter jurisdiction over Defendants under the Jones Act and "General Maritime Law" of the United States. Defendants challenge subject matter jurisdiction. Defendants move for dismissal of the Complaint pursuant to the doctrine of forum non conveniens and also move to dismiss the charges for failure to state a viable cause of action. The parties engaged in limited jurisdiction-related discovery relevant to Defendants' motions.
For the reasons stated below, the Court grants Defendants' motion to dismiss the Complaint pursuant to the doctrine of forum non conveniens and for failure to state a viable cause of action under the Jones Act.
Plaintiff is an individual named Stefan Banculescu ("Banculescu" or "Plaintiff"). Plaintiff is a citizen of Romania who resides in Constanta, Romania. (See Second Amended Compl. ¶1.) Plaintiff has a Romanian mobile phone number and personal bank account. (Bornheim Decl. ¶¶13-14.) Plaintiff has no apparent connection to New York or the United States.
Defendant Compania Sud Americana De Vapores, SA ("CSAV") is a Chilean corporation with its principal place of business in Valparaiso, Chile. (See Declaration of Joseph R. Tagliarini ¶¶9-11.) CSAV chartered, operated and controlled the vessel Defendant CSAV Itajai per a charter agreement entered in Hamburg, Germany on December 5, 2007 between CSAV, as charterer, and Defendant Peter Dohle Schiffsbeteiligungs KG (GmbG & Co.) ("Peter Dohle"), as owner. (See Tagliarini Decl. ¶5 and Ex. 1.) In its capacity as charterer, CSAV selected the ports between which the vessel sailed but had no duties related to the navigation or operation of the vessel, selection or employment of the crew, or the maintenance, fitness or seaworthiness of the vessel or her hull, machinery, gear and equipment. (Id. at 7-8 and Ex. 1.)
Defendant CSAV Itajai was built in 2007-2008 at a foreign shipyard. Plaintiff has never served CSAV Itajai in rem, and thus, the vessel has not appeared in this action. The vessel was registered in Liberia at the time of the alleged incident.
Defendant Peter Dohle is a German business and the registered owner of the CSAV Itajai at all relevant times. Peter Dohle has one place of business, in Hamburg, Germany. Peter Dohle
received CSAV's stock through an arm's length sale and/or transfer. Peter Dohle's potential ownership interest was divested with the sale of all CSAV shares it had acquired prior to the date of Plaintiff's alleged injury.
Defendant Dohle Personalmanagment (GmbH & Co. K.G.) ("Dohle Mgmt") was at all relevant times a business entity duly formed and existing under the laws of Germany. Dohle Mgmt does not recruit, hire or supply crew members from the United States. Dohle Mgmt merged with non-party Peter Dohle Schiffshrts-KG of Germany in December 2010 and thereafter ceased to exist.
Collectively, Peter Dohle and Dohle Mgmt are referred to as "Dohle Defendants."
Peter Dohle contracted with Defendant Dohle Mgmt and/or Peter Dohle Schiffshrts-KG to recruit, hire, and supply crew members to serve aboard the vessel. (Plath Decl. ¶4, 9-10.) Dohle Mgmt contracted a local agent in Romania, non-party Dohle Manning Agency (Romania) Ltd., which is a Romanian business entity, to hire Plaintiff. (Bornheim Decl. ¶¶1-6.) Dohle Mgmt hired Plaintiff through a contract executed in Romania on September 2, 2010, and required payment of wages in Euros by deposit into Plaintiff's Romanian bank account. (Id. at ¶10-12 at Ex. 1.)
Plaintiff joined the vessel in Panama (Id. at ¶19.) and during the entire period of Plaintiff's employment, the vessel did not call at any port or place within the United States and did not even take any U.S.-origin or U.S.-bound cargo on board. (See Tagliarini Decl. ¶¶12-13.) Non-U.S. persons exclusively comprised the vessel's crew during the period of Plaintiff's employment. (See Bornheim Decl. ¶21; Ex. 2.)
The Dohle Defendants did not have any office, employees, directors, officers, agents, bank accounts or any other property located in the United States at any relevant time. (See Plath Decl. ¶¶5-7; Bornheim Decl. ¶4.)
On September 22, 2010, Plaintiff allegedly sustained an injury on board the vessel CSAV Itajai while off the coast of Jamaica. (See Jay Solomon Decl. ¶3.) Plaintiff severed his dominant right hand on the piston heads on the diesel engine of the ship. (See Solomon Decl. ¶5-6.) At the time, the vessel was navigating between the ports of Buenaventura, Colombia and Rotterdam, Netherlands. (See Bornheim Decl. ¶20; Tagliarini Decl. ¶13.) Plaintiff received emergency medical attention on board the vessel and his hand was reattached in Jamaica at Kingston Public Hospital Accident and Emergency Unit and the University Hospital of the West Indies in Kingston. (See Solomon Decl. ¶5.) Plaintiff was thereafter repatriated to his home in Constanta, Romania, where he received further medical treatment at Sanador Clinic in Bucharest, Romania. (See Bornheim Decl. ¶22-23.)
On April 11, 2011, Plaintiff sued Defendants CSAV and CSAV Itajai in the Southern District of New York. After twice amending his complaint, Plaintiff ultimately demanded $20.5 million in damages. Plaintiff claims that this Court has subject matter jurisdiction under both federal question jurisdiction pursuant to 28 U.S.C. §1331 and diversity jurisdiction pursuant to 28 U.S.C. §1332. All defendants who have appeared moved to dismiss all causes of action for failure to state a viable cause of action and the doctrine of forum non conveniens. The Dohle Defendants also contest personal jurisdiction.
A. Motion to Dismiss for Forum Non Conveniens
Under the common law doctrine of forum non conveniens, a district court has broad discretion to "dismiss a claim even if the court is a permissible venue with proper jurisdiction over the claim." PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir. 1998). "'[I]n the determination of a motion to dismiss for forum non conveniens, the court may consider affidavits submitted by the moving and opposing parties.'" Base Metal Trading SA v. Russian Aluminum, 253 F.Supp.2d 681, 699 n. 13 (S.D.N.Y. 2003) (quoting Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 645 (2d Cir. 1956)), aff'd, 98 Fed. Appx. 47 (2d Cir. 2004). The Second Circuit has "outlined a three-step process to guide the exercise of that discretion":
At step one, a court determines the degree of deference properly accorded the plaintiff's choice of forum. At step two, it considers whether the alternative forum proposed by the defendants is adequate to adjudicate the parties' dispute. Finally, at step three, a court balances the private and public interests implicated in the choice of forum.
Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005) (citing Iragorri v. United Techs. Corp., 274 F.3d 65, 73-74 (2d Cir. 2001) (en banc)).
"[A] court reviewing a motion to dismiss for forum non conveniens should begin with the assumption that the plaintiff's choice for forum will stand." In re Optimal U.S. Litig., 837 F. Supp.2d 244, 251 (S.D.N.Y. 2011) (quoting Iragorri, 274 F.3d at 71). "However, 'the degree of deference given to a plaintiff's forum choice varies with the circumstances,'" id. (quoting Iragorri, 274 F.3d at 71), and "the greatest deference is [usually] afforded a plaintiff's choice of home forum." Norex Petroleum, 416 F.3d at 153 (citing Iragorri, 274 F.3d at 71). "In assessing the proper measure of deference," courts look to several factors, including, "the convenience of the plaintiff's residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, the defendant's amenability to suit in the forum district," and whether plaintiff's choice was motivated by tactical forum shopping. In re Optimal, 837 F. Supp. 2d at
250-51. Ultimately, "the greater the plaintiff's or the lawsuit's bona fide connection to the United States and to the forum of choice and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States, the more difficult it will be to gain dismissal whereas the more it appears that the plaintiff's choice of a U.S. forum was motivated by forum-shopping reasons the less deference the plaintiff's choice commands." Id. (quoting Palacios v. Coca-Cola Co., 757 F. Supp.2d 347, 352 (S.D.N.Y. 2010)) (quotation marks and ellipses omitted).
With regard to step two, "[t]he defendant bears the burden of establishing that a presently available and adequate alternative forum exists." Abdullahi v. Pfizer, Inc., 562 F.3d 163, 189 (2d Cir. 2009). "[A] forum may…be inadequate if it does not permit the reasonably prompt adjudication of a dispute, if the forum is not presently available, or if the forum provides a remedy so clearly unsatisfactory or inadequate that it is tantamount to no remedy at all." Id. Although the ultimate burden rests with the defendant, courts will not "adversely judg[e] the quality of a foreign justice system," unless the plaintiff, for example, "produc[es] evidence of corruption, delay or lack of due process in the foreign forum." Id. (citing PT United Can Co., 138 F.3d at 73). "An alternative forum is adequate if the defendants are amenable to service of process there, and if it permits litigation of the subject matter of the dispute." Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 75 (2d Cir. 2003). "Moreover, '[t]he availability of an adequate alternative forum does not depend on the existence of the identical cause of action in the other forum, nor on identical remedies.'" In re Optimal, 837 F. Supp. 2d at 251 (quoting Norex Petroleum, 416 F.3d at 158).
At step three, the "burden is on the defendant to show 'the balance of private and public interest factors tilts heavily in favor of the alternative forum.'" Id. at 252 (quoting Abdullahi,
562 F.3d at 189). The private interest factors include: "(1) the relative ease of access to evidence; (2) the cost to transport witnesses to trial; (3) the availability of compulsory process for unwilling witnesses; and (4) other factors that make the trial more expeditious or less expensive." Id. These factors help the court balance "the hardships defendant would suffer through the retention of jurisdiction and the hardships the plaintiff would suffer as the result of dismissal" and having to bring suit in another jurisdiction. Id. (quoting Iragorri, 274 F.3d at 74).
The public interest factors include: "(1) settling local disputes in a local forum; (2) avoiding the difficulties of applying foreign law; (3) avoiding the burden on jurors by having them decide cases that have no impact on their community." Id. No single factor is dispositive, and "each case turns on its facts." Piper Aircraft v. Reyno, 454 U.S. 235, 249, 102 S.Ct. 252 (1981). "In sum, '[t]he action should be dismissed only if the forum is shown to be genuinely inconvenient and the selected forum significantly preferable." Id. (quoting Iragorri, 274 F.3d at 74-75).
B. Forum Non Conveniens Analysis Applies to Jones Act Cases
The Second Circuit has squarely held that an action may be dismissed on forum non conveniens grounds even if the Jones Act applies. See Cruz v. Maritime Co. of Philippines, 702 F.2d 47, 48 (2d Cir. 1983) (per curiam) ("maritime choice of law principles are not involved in a forum non conveniens analysis and…the district court's discussion on the subject was therefore unnecessary"); Gazis v. John S. Latsis (USA) Inc., 729 F.Supp. 979, 985 (S.D.N.Y. 1990) ("a district court may dismiss a case on forum non conveniens grounds without first making a choice of law determination"); Doufexis v. Nagos S.S., Inc., 583 F.Supp. 1132, 1133 (S.D.N.Y. 1983) (forum non conveniens dismissal in Jones Act case permitted).
Ultimately, the Second Circuit requires evidence that the defendants had "substantial contact" with the United States before applying the Jones Act. Use of the Jones Act and the unseaworthiness doctrine is limited to "suits in which the defendant has some substantial contact with the United States." Koupetoris v. Konkar Intrepid Corp., 535 F.2d 1392, 1396 (2d Cir. 1976). In determining whether the contacts in a given case are "substantial," the Supreme Court has identified the following contacts as worth of consideration: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured party; (4) the allegiance of the shipowner; (5) the place where the contract of employment was made; (6) the inaccessibility of a foreign forum; and (7) the law of the forum. (Id. citing Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953)). First, Plaintiff's alleged injury occurred off the coast of Jamaica. Second, the vessel's flag is Liberia. Third, Plaintiff is a domiciliary of Romania. Fourth, the vessel's owners are German. Fifth, the employment contract was negotiated and executed in Romania. Sixth, as discussed further below, Romania and Germany are not inaccessible to the parties. The seventh factor is irrelevant since this action is in the courts of the United States. See Carbotrade S.P.A. v. Bureau Veritas, 99 F.3d 86, 91 (2d Cir. 1996). Because Defendants lack substantial contact with the United States, the Jones Act and the general maritime law of the United States do not apply in this action.
1. Level of Deference Afforded to Plaintiff's Choice
Plaintiff's choice of forum here is accorded some minimal deference. First, the Supreme Court explained that we give deference to a plaintiff's choice of his home forum because it is presumed to be convenient. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981) ("When the home forum has been chosen, it is reasonable to assume that this choice is convenient."). However, it "is much less reasonable" to presume that a foreign
plaintiff chooses a U.S. forum for convenience. Id. at 256. Thus, the "convenience of the plaintiff's residence in relation to the chosen forum" weighs against according deference to Plaintiff's choice of forum. Norex Petroleum Ltd. v. Access Industries, Inc., 416 F.3d 146, 154 (2nd Cir. 2005).
A foreign plaintiff's choice deserves less deference because "the central purpose of any forum non conveniens inquiry is…to ensure that the trial is convenient." Id. (citations omitted); accord, e.g., Mongasque de Reassurances S.A.M. v. Nak Naftogay of Ukraine, 311 F.3d 488, 498 (2d Cir. 2002). A plausible likelihood exists that a foreign plaintiff selects a U.S. forum for forum-shopping reasons, such as the perception that U.S. courts award higher damages than are common in other countries. Even if the U.S. district was not chosen for such forum-shopping reasons, there is nonetheless little reason to assume that it is convenient for a foreign plaintiff.
In deciding the degree of deference to give to a plaintiff's choice of a U.S. forum, the more it appears that a plaintiff's choice of forum has been dictated by reasons that the law recognizes as valid, the greater the Court will defer to the plaintiff's forum choice. Stated differently, the greater the plaintiff's or the lawsuit's bona fide connection to the United States and to the forum of choice and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States, the more difficult it will be for the defendant to gain dismissal for forum non conveniens. Thus, factors that argue against forum non conveniens dismissal include the convenience of the plaintiff's residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, the defendant's amenability to suit in the forum district, the availability of appropriate legal assistance, and other reasons relating to convenience or expense. On the other hand, the more it appears that the plaintiff's choice of a
U.S. forum was motivated by forum-shopping reasons, such as attempts to win a tactical advantage resulting from local laws that favor the plaintiff's case, the habitual generosity of juries in the United States or in the forum district, the plaintiff's popularity or the defendant's unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum, the less deference the plaintiff's choice commands and, consequently, the easier it becomes for the defendant to succeed on a forum non conveniens motion by showing that convenience would be better served by litigating in another country's courts. Iragorri v. United Tech. Corp., 274 F.3d at 71-72 (fns. omitted).
The Iragorri Court concluded that:
[T]he greater the degree of deference to which the plaintiff's choice of forum is entitled, the stronger a showing of inconvenience the defendant must make to prevail in securing forum non conveniens dismissal. At the same time, a lesser degree of deference to the plaintiff's choice bolsters the defendant's case but does not guarantee dismissal…The action should be dismissed only if [plaintiff's] chosen forum is shown to be genuinely inconvenient and [defendant's] selected forum significantly preferable. In considering this point, the court furthermore must balance the greater convenience to the defendant of litigating in its preferred forum against any greater inconvenience to the plaintiff if the plaintiff is required to institute the suit in the defendant's preferred foreign jurisdiction.
Id. at 74-75. Accord, e.g., Mongasque, 311 F.3d at 498; see also, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir. 2000), cert. denied, 532 U.S. 941, 121 S.Ct. 1402, 149 L.Ed.2d 345 (2001) ("deference increases as the plaintiff's ties to the forum increase"); Abdullahi v. Pfizer, Inc., 01 Civ. 8118, 2002 WL 31082956 at *10 (S.D.N.Y. Sept. 17, 2002) ("[A]s foreign nationals with no significant ties to the Southern District, plaintiff's are not entitled to a strong presumption that their choice of forum is sufficiently convenient" under Iragorri standards.).
Foreign plaintiffs deserve less deference, not because they lack U.S. citizenship, but simply because their overseas residence vitiates any presumption that they would find the U.S.
forum convenient. As the Second Circuit explained, U.S. residence is a "factor supporting the plaintiff's choice of a U.S. forum," "not because of chauvinism or bias in favor of U.S. residents," but rather because the greater the plaintiff's ties to the plaintiff's chosen forum, the more likely it is that the plaintiff would be inconvenienced by a requirement to bring the claim in a foreign jurisdiction. Wiwa, 226 F.3d at 102. Also, while our courts must offer equal justice to all litigants, a neutral rule that compares the convenience of the parties should properly consider each party's residence as a factor that bears on the inconvenience that party might suffer if required to sue in a foreign nation. Id.
Second, "the availability of witnesses or evidence to the forum district" does not strongly weigh in favor of deferring to Plaintiff's choice of forum. The substantive issues and conduct have a greater relation to Romania and Germany than the United States. The possibility that the Jones Act might apply to Plaintiff's claim does not create a substantial connection to this forum. Varnelo v. Eastwind Transport, Ltd., 2003 WL 230741, 10 (S.D.N.Y. 2003). The factual allegations are attenuated from New York and weigh against according deference to Plaintiff's choice of forum. Accordingly, this second factor does not strongly weigh in favor of deferring to Plaintiff's choice of forum.
The third factor, "the defendant's amenability to the suit in the forum district," weigh against according deference to Plaintiff's choice of forum. Dohle Defendants contest personal jurisdiction in New York. Compare Norex Petroleum, 416 F.3d at 155 (noting that New York was a convenient, not tactical, choice of forum, where it was doubtful that plaintiff could have perfected jurisdiction over all defendants in any of the "presumptively convenient home forums" or "even in defendants' preferred forum"). The Dohle Defendants do not have any officers, directors, employees or agents in the United States. Nor do they own or lease real property or
office space or maintain any bank accounts or any other property in New York or the United States. While this Court may lack personal jurisdiction over the Dohle Defendants, the parties are subject to suit in Germany and consent to suit in Romania. As such, this is not the case where a plaintiff's choice of forum is "made to obtain jurisdiction over defendant," Norex Petroleum, 416 F.3d at 156 (quoting Iragorri, 329 F.3d at 74), which cuts against a finding of deference on this factor.
Fourth, courts must ask whether the plaintiff's choice of forum was motivated by tactical reasons. In light of the other deference factors above, an inference that forum shopping motivated Plaintiff's choice of New York forum is not far-fetched. Plaintiff may have been motivated to choose New York to take advantage of federal laws. Plaintiff's choice of forum is given less deference because New York is not the home forum for Plaintiff or any defendant.
In sum, Plaintiff is afforded "little deference" because the lawsuit does not have a bona fide connection to New York and New York is not convenient for Defendants or the majority of available witnesses. See Monegasque De Reassurances S.A.M. v. Nak Naftogaz of Ukraine, 311 F.3d 488, 499 (2d Cir. 2002).
2. Adequacy of Alternative Fora
Germany and Romania are adequate fora. See Calavo Growers of Cal. v. Generali Belgium, 632 F.2d 963, 968 (2d Cir. 1980). "An alternative forum is adequate if the defendants are amenable to service of process there, and if it permits litigation of the subject matter of the dispute." Pollux Holding, 329 F.3d at 75.
The Second Circuit has held that "[o]nce defendants consent  to suit in" the foreign forum, "there [is] no reason to determine whether defendants were initially subject to the compulsory jurisdiction" of the foreign forum. Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880,
882 (2d Cir. 1978). Here, both Dohle Defendants are amenable to service of process, and do not object to, Plaintiff bringing suit in Germany or Romania. CSAV's amenability to suit in either forum is not an issue because Peter Dohle has agreed to defend CSAV.
Courts are available in both Germany and Romania to hear Plaintiff's personal injury claims. Numerous courts have found Germany to be an adequate alternative forum. See e.g., Opert v. Schmid, 535 F.Supp. 591 (S.D.N.Y. 1982); NCA Holding Corp. v. Norddeutsche Landesbank Girozentrale, No. 96 Civ. 9321, 1999 WL 39539 (S.D.N.Y. Jan. 28, 1999) (finding German courts to be an adequate alternative forum); Jauss v. Lehman Bros., Inc., No. 94 Civ. 2921, 1995 WL 4023 (S.D.N.Y. Jan. 5, 1995) (same); Fagan v. Deutsche Bundesbank, 438 F. Supp. 2d 376, 382 (S.D.N.Y. 2006) (same); Mackley v. Gruner & Jahr, A.G. & Co., No. 93 Civ. 6521, 1995 WL 417069, at *1 (S.D.N.Y. July 13, 1995) (although pain and suffering awards are lower, Germany provides adequate forum for negligence claim). As Defendants consent to jurisdiction in Germany and Romania and these courts adjudicate personal injury claims, Germany and Romania are adequate fora.
3. Private and Public Factors
a. Private Interests
First, the "relative ease of access to evidence" weighs significantly in favor of Germany and Romania. None of the potential witnesses having direct knowledge of Plaintiff's employment, the alleged accident, his medical condition and treatment are located in the United States. All documents and records relating to the case are located abroad, in Germany and Romania, except for those documents which are kept on the vessel. The vessel is not expected to be in any U.S. port or place in the foreseeable future. In any event, personal injury actions do not usually entail so many documents to be produced that their production in another forum could
prove to be overly burdensome. The liability question in this case should be similar to the typical negligent injury case, where liability is proven through the testimony of witnesses.
Second, the "cost to transport witnesses to trial" weighs slightly in Defendants' favor in that at least the parties themselves are in Romania and Germany. Witnesses may require interpreters, thereby incurring additional expenses. Regardless, the Court does not find the cost to transport and lodge witnesses to have much bearing on this analysis.
Third, the "availability of compulsory process for unwilling witnesses" weighs significantly in favor of Germany and Romania. Most of the individuals and entities identified in the Complaint reside in Germany and Romania or other foreign jurisdictions outside the Court's subpoena power and cannot be compelled to give evidence in this case. See Allstate Life Ins. Co. v. Linter Grp. Ltd., 994 F.2d 996, 1001 (2d. Cir. 1993) (private factors favored dismissal where "key witnesses no longer are within the subpoena power of the federal court and therefore cannot be compelled to appear at trial in New York."). In sum, the private interests in this case do not favor maintaining this suit in New York.
b. Public Interests
First, the fora's relative interests weigh in favor of dismissal. New York does not ultimately have a stronger interest than Germany and Romania in this particular lawsuit. Plaintiff does not argue otherwise.
Moreover, New York also has an interest in "avoiding the burden on [its] jurors by having them decide cases that have no impact on their community." Maersk, Inc. v. Neewra, Inc., 554 F. Supp. 2d 424, 454 (S.D.N.Y. 2008). This especially pertains to jurors before this Court: "It is well-recognized that the Southern District of New York is a congested district…and there is a legitimate interest in ensuring that disputes with little connection to the district be
litigated elsewhere." Albert Trading, Inc. v. Kipling Belgium N.V./S.A., 2002 WL 272408, at *6. (S.D.N.Y. 2006).
The public interest factors prefer dismissal. Despite Plaintiff's opportunity to discover facts to back up his claim that the Southern District of New York is a convenient forum, the case for dismissal is strong. Plaintiff's opposition to Defendants' motion to dismiss failed to include a memorandum of law. Plaintiff does not oppose most of Defendants' arguments in favor of dismissal. Plaintiff's only argument in his opposition is to challenge Defendants' argument that this Court lacks personal jurisdiction over the Dohle Defendants and to suggest a nexus between Defendants. Even assuming arguendo that personal jurisdiction exists over the Dohle Defendants, this Court has wide discretion to dismiss this action for forum non conveniens.
Considering the little deference afforded Plaintiff's choice of forum, that Germany and Romania are adequate alternative fora, and that New York has no real interest in this litigation, Defendants have sufficiently shown that a balance of the hardships in this case favors dismissal. Accordingly, this action is dismissed for forum non conveniens and for failure to state a viable cause of action under the Jones Act. The Court need not address personal jurisdiction over the Dohle Defendants.
Based on the above, the Defendants' motion to dismiss the Complaint for forum non conveniens is GRANTED on the condition that Defendants waive any defense they might have relating to any statute of limitations that did not exist prior to the initiation of this suit and that Defendants consent to jurisdiction of German and Romanian courts and to service of process in Germany and Romania.