Motion to Dismiss for Forum Non Conveniens in New York

Background

The doctrine of forum non conveniens “permits a court to stay or dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere.” (Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478-79 [1984].)

The purpose of dismissal for forum non conveniens is so that New York Courts “should not be under any compulsion to add to their heavy burdens by accepting jurisdiction of a cause of action having no substantial nexus with New York.” (Shin-Etsu Chemical Co., Ltd. v. 3033 ICICI Bank, Ltd., 9 A.D.3d 171, 176 [1st Dept. 2004].)

How to Structure the Motion

“When the court finds that in the interest of substantial justice the actions should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just.” (Civ. Prac. Law & Rules, § 327(a).)

In determining a forum non conveniens claim, New York courts consider the balance of the following facts:

1. The burden on the New York courts;
2. The potential hardship to the defendant;
3. The unavailability of an alternative forum in which the plaintiff may bring suit;
4. Whether both parties to the action are non-New York residents; and
5. Whether the transaction complained of occurred primarily in a foreign jurisdiction.

(Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479 [1984]; Kinder Morgan Energy Partners v. Ace Am. Ins., 55 A.D.3d 482 [1st Dept. 2008].)

Matters which have little or no connection to New York are cases where dismissal for forum non conveniens is clearly supported by caselaw. (Rivera v. Parvez, 108 A.D.2d 640 [1st Dept. 1985].) The occurrence of a transaction in a foreign jurisdiction weighs heavily in favor of dismissal for forum non conveniens. (Hbouss v. Bank of Montreal, 23 A.D.3d 152, 152 [1st Dept. 2005].) New York courts consider whether “the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction.” (Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479 [1984].) If so, the action should be heard in the jurisdiction where the conduct occurred. (Zelouf v. Republic Nat. Bank of New York, 225 A.D.2d 419 [1st Dept. 1996].)

A related consideration that militates in favor of dismissal is the location of witnesses and documents; New York courts often dismiss actions where the majority of fact witnesses are non-residents. (Shin-Etsu Chemical Co., Ltd. v. 3033 ICICI Bank, Ltd., 9 A.D.3d 171 [1st Dept. 2004].) Additional facts are the residency of the parties, the potential hardship to witnesses, the situs of the underlying actionable events, and the location of the evidence. (Turay v. Bean Bros. Tracking, Inc., 61 A.D.3d 964, 966 [2009].)

Response

When a plaintiff is a non-resident of New York, it is the plaintiff’s burden to demonstrate that special circumstances exist warranting retention of the case in New York. (Blais v. Deyo, 92 A.D.2d 998 [3rd Dept. 1983].)

The Court’s Decision

The principle of forum non conveniens is simply that a court may 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].) Based on this principle, it is well-settled in New York that courts “need not entertain [litigation] lacking a substantial nexus with New York.” (P.T. Delami Garment Indus. V. Cassa di Risparmio di Torino, 164 Misc. 2d 38, 39-40 [N.Y. Sup. 1994].)

No single factor is controlling in the court’s determination of forum non conveniens; “the great advantage of the rule of forum non conveniens is its flexibility based upon the facts and circumstances of each case.” (Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479 [1984]; Ghose v. CAN Reinsurance Co. Ltd., 43 A.D.3d 656, 660 [1st Dept. 2007].)