Mediterranean Golf, Inc. v. Hirsh

• Decision Date: 27 November 1991
• Docket Number: Civ. A. No. 91-2234 (AJL).
• Citation: 783 F. Supp. 835
• Parties: MEDITERRANEAN GOLF, INC. and Robert Trent Jones, Plaintiffs, v. Denyse Louppe HIRSH, Defendant.
• Court: U.S. District Court — District of New Jersey

783 F. Supp. 835

MEDITERRANEAN GOLF, INC. and Robert Trent Jones, Plaintiffs, v. Denyse Louppe HIRSH, Defendant.

Civ. A. No. 91-2234 (AJL).

United States District Court, D. New Jersey.

November 27, 1991.

Vincent J. Paluzzi, Marshall D. Bilder, Hannoch Weisman, P.C., Trenton, N.J., Kenneth B. Clark, Kathryn J. Fritz, Fenwick & West, Palo Alto, Cal., for plaintiffs.

William J. O'Shaughnessy, Amy S. Winkelman, Clapp & Eisenberg, P.C., Newark, N.J., for defendant.

OPINION

LECHNER, District Judge.

This is a breach of contract action brought by plaintiffs Mediterranean Golf, Inc. ("Mediterranean Golf") and Robert Trent Jones ("Jones") (collectively, the "Plaintiffs") against defendant Denyse Louppe Hirsh ("Hirsh"). Jurisdiction is asserted pursuant to 28 U.S.C. § 1331. Currently before the court is the motion brought by Hirsh to dismiss the complaint on the grounds of forum non conveniens and international comity.¹ For the reasons set forth below, the motion to dismiss on the ground of forum non conveniens is granted; the motion to dismiss on the ground of international comity is moot.

Facts

Jones is a golf course architect who resides in Florida. Jones Dec., ¶ 2. Jones has never resided in France. Id. He is the Chairman, President and sole shareholder of Mediterranean Golf. Id. Mediterranean Golf is a Delaware corporation with its principal place of business in Florida. Davis Dec., ¶ 2. The wholly-owned subsidiary of Mediterranean Golf is S.C.I. Cascade des Maures ("SCI"). Id., ¶ 3; Jones Dec. ¶ 7. SCI is a French company which owns and develops property. Hirsh Aff., ¶ 5. Jones is the Chairman and President of SCI. Id.; Jones Dec., ¶ 7. Mediterranean Golf was formed in 1982 for the purpose of holding the stock of SCI.² Hirsh Aff., ¶ 10.

SCI has an interest in a golf course project under development in Vidauban, France, located in the Provence region of southern France (the "Vidauban Project"). Jones Dec., ¶ 7. The Vidauban Project involves a plan to develop more than 1100 hectares of land in Vidauban into a resort complex of three golf courses, forty tennis courts, two artificial lakes, six luxury hotels and two hundred shops, houses and replicas of Provencale villages. Hirsh Aff., ¶ 4; Sokol Aff., ¶ 4.

Hirsh is a French citizen married to a United States citizen, Allen Hirsh ("A. Hirsh") (collectively, the "Hirshes"). Hirsh Aff., ¶ 2. Since their marriage in 1973, the Hirshes have maintained residences at A. Hirsh's family home in Montclair, New Jersey, Hirsh's family flat in Paris and at their vineyard in Ville Croze, Provence, France. Id. During the past fifteen years, Hirsh has lived primarily in Ville Croze, Provence, France. Id., ¶ 3. From 1973 through 1988 the Hirshes owned a vineyard outside Ville Croze. Id.

In 1981 at the Hirshes' Montclair residence A. Hirsh introduced Hirsh to Jones. Id., ¶ 4; Jones Dec., ¶ 3. A. Hirsh and Jones had met at the Montclair Golf Club, where each of them are members. Hirsh Aff., ¶ 4. At the time they were introduced, Jones told Hirsh about the Vidauban Project. Id. Jones told Hirsh he had already acquired rights to purchase parcels of land necessary for the Vidauban Project. Id., ¶ 5. Jones further told Hirsh of difficulties he had with respect to obtaining the necessary land use approvals from the local French authorities. Id. Aware that Hirsh was at that time a French citizen and a long time resident of Provence with substantial contacts among government officials and business leaders in the region, Jones asked Hirsh if she could use her familiarity with these people and institutions in the area to assist him. Id., ¶¶ 2, 5. Hirsh told Jones she would try; subsequently, she obtained the required land use approvals after time and effort. Id., ¶¶ 5-6.

During the following eight years, Hirsh worked in the Vidauban Project, with and without a contract of employment. In 1982 Jones asked and Hirsh agreed to become the co-Gerante of SCI with Firouz Affrouz ("Affrouz"). Id., ¶ 6. A Gerante is the equivalent of a chief operating officer of a company. Id. Affrouz resigned his position in October 1982 at which point Hirsh became the sole Gerante. Id. After Affrouz' resignation, SCI had three employees, Hirsh, a secretary and Jacques Mikelian ("Mikelian"), the Project Manager. Id., ¶ 8. SCI had its offices at Hirsh's vineyard in Ville Croze until the vineyard was sold in 1989. Id.

As Gerante of SCI Hirsh obtained and maintained the zoning approvals, prepared budgets, made and cultivated contacts with local and national French governmental authorities, worked with the various advisors and consultants for planning and engineering, negotiated fees and financing, assisted attorneys who represented Jones and attended local functions for the Vidauban Project. Id., ¶ 7. These efforts required extensive travel throughout France to meet government officials, bankers and attorneys. In addition, Hirsh traveled to the United States to discuss the status of the Vidauban Project with Jones or his advisors. Id., ¶ 9. Generally, Hirsh went to Florida during her trips to the United States; however, she did make some trips to New York and New Jersey. Id. During some of her visits to the United States Hirsh would entertain French contacts. Id.

From 1982 until 1987 Hirsh worked as Gerante of SCI without a contract. She entered her first contract with respect to her work for the Vidauban Project in 1987. Id., ¶ 11. At that time, Hirsh entered two contracts concerning her employment: the first was a five year employment contract between Hirsh and SCI; the second was a contract between Hirsh and Jones. Id. Under the second contract, Jones personally and unconditionally guaranteed all sums due and payable to Hirsh under the contract with SCI. Id. Both of these contracts were renegotiated in 1989. The renegotiations resulted in the "Amended and Restated Employment Agreement" with SCI (the "SCI Contract") and an Employment Agreement with Mediterranean Golf (the "Mediterranean Golf Contract"). Id., ¶ 12, Ex. D. Under both of these contracts, Hirsh's employment was extended to 31 December 1993. Id., ¶ 13.

The SCI Contract provided that Hirsh would be compensated in French francs and that French law would apply. Id., ¶ 13, Ex. C, Art. III. The Mediterranean Golf Contract provided that Hirsh's compensation would be paid in a "combination of United States dollars and French Francs sic exchanged for United States dollars." Id., ¶ 13. The choice of law clause under the Mediterranean Golf Contract provided for the application of New York law. Id., Ex. D, Art. IV. The Mediterranean Golf Contract provided that SCI would pay Hirsh for twelve months the employment compensation due thereunder in the event it was terminated pursuant to the termination provision. Id., Ex. D at Art. II, § 2.1(e). In addition, both the SCI Contract and the Mediterrean Golf Contract had an unconditional and personal guaranty of Jones guarantying the payment of all sums due to Hirsh as well as a provision for payment in the event of a termination of either agreement. Id.

The Mediterranean Golf Contract was negotiated on behalf of Mediterranean Golf by Frank Weller, Esq. ("Weller"), a Maryland attorney. Jones Dec., ¶ 5. Hirsh was represented by Cole & Dietz, a New York City law firm. Id. Hirsh's Montclair, New Jersey address is given as her residence on the Mediterranean Golf Contract. Id.

Although Hirsh's duties as Gerante did not change after the execution of the SCI Contract and Mediterranean Golf Contract, her duties were set forth thereunder. Under the SCI Contract, Hirsh was required to serve as Gerante of the SCI and continue preparations of the master plan for the Vidauban Project. Hirsh Aff., ¶ 14. Jones states that the SCI Contract dealt exclusively with Hirsh's services relating to the Vidauban Project. Jones Dec., ¶ 7.

The Mediterranean Golf Contract required Hirsh to "`develop and implement marketing and public relations programs for Mediterranean Golf for the purpose of promoting the `Robert Trent Jones' name and the business activities and goodwill of all businesses controlled by Jones....'" Mediterranean Golf Contract, 1. At oral argument, counsel for Plaintiffs contended the Mediterranean Golf Contract implicitly required Hirsh to travel around the world to fulfill her duty to promote the Robert Trent Jones name. However, there is no language in the Mediterranean Golf Contract which supports that contention. Moreover, Plaintiffs have not submitted an affidavit or other documentation to support that contention. The Mediterranean Golf Contract also prohibited Hirsh from accepting employment by any company other than those companies owned by Jones. Id., 2.

Hirsh states that in fulfilling her obligations under the Mediterranean Golf Contract she was never required to work for any of Jones' other companies other than SCI. Hirsh Aff., ¶ 14. The Plaintiffs state throughout Hirsh's employment under the Mediterranean Golf Contract she was in "regular communication" with Jones or his advisors who were located in the United States. Fritz Dec., ¶ 4, Ex. 4. Alan Blake Davis, Chief Operating Officer and Vice President of Mediterranean Golf ("Davis"), states he had extensive meetings with Hirsh in the United States. Davis Dec., ¶ 3.

In 1990 Jones hired a team of advisors to review his domestic and international operations. Jones Dec., ¶ 6. Davis was one of the people hired for that purpose. Davis Dec., ¶ 3. In April 1990 Hirsh attended a meeting in Florida where she was advised that her salary was being reduced because of financial difficulties of Jones and his companies. Hirsh Aff., ¶ 18. In June 1990 Hirsh attended a meeting in Paris at which Hirsh was requested to give a presentation on the Vidauban Project with only two hours' notice. Id.

Jones states that he realized, as a result of the above-mentioned review, there was little to no promotion of his name as required under the Mediterranean Golf Contract. Jones ...