In re Assicurazioni Generali S.P.A. Holocaust Ins.

Decision Date25 September 2002
Docket NumberNo. MDL 1374.,No. M21-89 (MBM).,MDL 1374.,M21-89 (MBM).
Citation228 F.Supp.2d 348
PartiesIn re: ASSICURAZIONI GENERALI S.P.A. HOLOCAUST INSURANCE LITIGATION This Disposition Applies to All Actions.
CourtU.S. District Court — Southern District of New York

Robert A. Swift, Joanne Zack, Kohn, Swift & Graf, P.C., Philadelphia, PA, Edward D. Fagan, Fagan & Associates, Livingston, NJ, Lawrence Kill, Linda Gerstel, Anderson Kill & Olick, P.C., New York, NY, for Cornell and Smetana Plaintiffs.

Nancy Cohen, Reynold L. Siemens, Stephen N. Goldberg, Heller Ehrman White & McAuliffe, Los Angeles, CA, for Smetana Plaintiffs.

Elizabeth J. Cabraser, Morris A. Ratner, Caryn Becker, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, NY, Melvyn I. Weiss, Deborah M. Sturman, Milberg Weiss Bershad Hynes & Lerach LLP, New York, NY, for Schenker Plaintiffs.

William M. Shernoff, Jeffrey Issac Ehrlich, Douglas M. Carasso, Evangeline F. Garris, Shernoff Bidart & Darras, Claremont, CA, Lisa Stern, The Law Office of Lisa Stern, Los Angeles, CA, for Brauns, Mandil, Szekeres, Lightner, and Sladek Plaintiffs.

Thomas R. Fahl, Whyte Hirschboeck Dudek S.C., Menomonee Falls, WI, for Plaintiff David David.

Joseph P. Garland, Edward J. Klein, Jay Solomon, Klein & Solomon, LLP, New York, NY, Mel Urbach, Law Offices of Mel Urbach, Jersey City, NJ, for Plaintiff Maurice Tabaksman.

Samuel J. Dubbin, Dubbin & Kravetz, LLP, Coral Gables, FL, for Weiss Plaintiffs.

Franklin B. Velie, Dierdre A. Bergman, A. John P. Mancini, Salans Hertzfeld Heilbronn Christy & Veiner, New York, NY, M. Scott Vayer, Law Offices of M. Scott Vayer, New York, NY, for Defendant Assicurazioni Generali S.p.A.

Robert M. Raives, David D. Howe, Holland & Knight LLP, New York, NY, for Defendant Zurich.

OPINION AND ORDER

MUKASEY, District Judge.

In twelve different actions currently before the court, plaintiffs sue European insurance companies that issued policies in about a dozen countries from 1920 to 1945.1 It is alleged that those companies refused to pay benefits to policy beneficiaries or their surviving family members following the death of the policy holders or damage to their property during the German campaign of genocide before and during World War II, known as the Holocaust.

Assicurazioni Generali S.p.A. ("Generali"), a defendant in all actions, moves to dismiss on the grounds of forum non conveniens and contractual forum selection. Zurich Life Insurance Company and Zürich Versicherungs-Gesellschaft (collectively "Zurich"), defendants only in the Schenker action, also move to dismiss on the ground of forum non conveniens. Both Generali and Zurich argue that the balance of conveniences requires litigation in either: 1) the International Commission on Holocaust Era Insurance Claims ("ICHEIC"), a private commission set up by several European insurance companies, governmental entities, and nongovernmental organizations to resolve unpaid Holocaust-era insurance claims; or 2) the courts of the European countries in which the relevant insurance policies were issued. Generali additionally argues that applicable forum selection clauses mandate litigation of plaintiffs' claims in Europe. For the reasons set forth below, Generali's and Zurich's motions to dismiss are denied with respect to all plaintiffs.

I.

In considering a motion to dismiss on the ground of forum non conveniens, a court must first determine the level of deference to be given plaintiff's choice of forum. Iragorri v. United Techs. Corp., 274 F.3d 65, 73 (2d Cir.2001) (en banc). Once that level is determined, the court must consider whether an adequate alternative forum exists. Id. If so, the court must weigh the relative convenience of the forums by examining the private and public interest factors set out by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), Koster v.(Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 531-32, 67 S.Ct. 828, 91 L.Ed. 1067 (1947), and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). "[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." Iragorri, 274 F.3d at 74.

The level of deference to be afforded a plaintiff's choice of forum is a question that has been the subject of much recent jurisprudence in the Second Circuit. See DiRienzo v. Philip Servs. Corp., 294 F.3d 21 (2d Cir.2002) ("DiRienzo II"); Iragorri, 274 F.3d at 69; DiRienzo v. Philip Servs. Corp., 232 F.3d 49 (2d Cir.2000) ("DiRienzo I"); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir.2000); Guidi v. Inter-Continental Hotels Corp., 224 F.3d 142 (2d Cir.2000). In DiRienzo I, Wiwa, and Guidi, the Circuit suggested that whenever a U.S. plaintiff files suit in a U.S. forum, that choice is to be considered the plaintiff's "home forum," and therefore entitled to great weight—even if that forum is a district other than the district in which the plaintiff resides. See DiRienzo I, 232 F.3d at 60-63; Wiwa, 226 F.3d at 101-03; Guidi, 224 F.3d at 145-48. A divided panel in DiRienzo I held this level of deference to be undiminished by the fact that the U.S. plaintiffs may be acting in a representative capacity as part of a shareholder class action, at least where the majority of the plaintiff class were American residents. See DiRienzo I, 232 F.3d at 60-62. But see DiRienzo I, 232 F.3d at 72-79 (Cabranes, J., dissenting).

In order to elucidate the principles established in those recent opinions, the Second Circuit in Iragorri v. United Technologies Corp., 274 F.3d 65 (2d Cir.2001), sitting en banc, fashioned a "sliding scale" approach to determine the appropriate deference to be given to a plaintiff's choice of forum. Id. at 71. According to that scale, "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 deference will be accorded plaintiff's choice of a U.S. forum, and "the more difficult it will be for the defendant to gain dismissal for forum non conveniens." Id. at 72 (footnotes omitted). To help guide future analysis, the Court identified the following factors as examples of factors that militate against forum non conveniens dismissal:

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.

Id. On the other hand, the Court stated that forum non conveniens dismissal will be most appropriate where:

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.

Id.

In the actions currently before the court, three distinct plaintiff groups are present. See supra note 1. The first plaintiff group consists of the plaintiffs in the Cornell and Schenker class actions, who filed their class-action complaints in this court in the first instance. Of the named Cornell plaintiffs, two live in New York, one lives in Texas, and one lives in California. (Cornell Second Am. Compl.) Of the named Schenker plaintiffs, two are residents of New Jersey, two are residents of Florida, and one is a resident of California. (Schenker Corrected Am. Compl.) Both the Cornell and Schenker class action complaints were recently amended to exclude all claims against German Corporations in accordance with the German Foundation settlement between the German and American governments. See infra p. 11-12 & n. 6. Prior to those amendments, 22 of the 39 named plaintiffs in the Cornell and Schenker actions were residents of New York. (Cornell Am. Compl.; Winters Compl.)

There appears to be no reason to doubt the bona fides of the Cornell and Schenker plaintiffs' choice of a U.S. forum: every single named plaintiff is a U.S. resident, and litigation abroad would likely raise costs and necessitate the retention of foreign counsel. Furthermore, plaintiffs' choice of this particular U.S. forum was likely motivated by their legitimate desire to litigate close to their residences. Twenty-two of the original 39 named plaintiffs were from New York, with the other 17 plaintiffs scattered around the country; even for the current group of named plaintiffs, New York is a convenient forum, with four of the nine plaintiffs living in New York or New Jersey, and the other five plaintiffs geographically scattered. Furthermore, "[o]utside of Israel, New York is home to the largest number of Holocaust survivors and their heirs in the world," N.Y. Holocaust Victims Insurance Act of 1998 ("HVIA") § 2, N.Y. Ins. Law § 2701 notes (McKinney 2000), which suggests that whomever the unnamed plaintiff class or classes ultimately include, a substantial portion will consist of New York residents.

It does not appear that the Cornell and Schenker plaintiffs have brought suit in this forum merely to inconvenience defendants. Although the parties have not presented evidence as to where else Generali and Winterthur might be subject to suit, plaintiffs, having chosen a U.S. forum, have chosen a convenient one. Generali itself concedes as much, stating in its motion before the MDL panel to consolidate the present actions in this district: "New York is the most convenient forum to litigate the issues in the United States, as it is the home of Generali's United States...

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