Nationsbank of Florida v. Banco Exterior de Espana, 93 Civ. 3086 (LAP).

• Decision Date: 17 October 1994
• Docket Number: No. 93 Civ. 3086 (LAP).,93 Civ. 3086 (LAP).
• Citation: 867 F. Supp. 167
• Parties: NATIONSBANK OF FLORIDA, Plaintiff, v. BANCO EXTERIOR DE ESPAÑA, Defendant.
• Court: U.S. District Court — Southern District of New York

867 F. Supp. 167

NATIONSBANK OF FLORIDA, Plaintiff, v. BANCO EXTERIOR DE ESPAÑA, Defendant.

No. 93 Civ. 3086 (LAP).

United States District Court, S.D. New York.

October 17, 1994.

Christopher Mason, Hunton & Williams, New York City, for plaintiff.

MEMORANDUM AND ORDER

PRESKA, District Judge.

Plaintiff, Nationsbank of Florida ("Nationsbank"), brought this suit in diversity against defendant, Banco Exterior de España ("BEX"), pursuant to the Uniform Customs and Practices for Documentary Credits ("UCP")¹ for breach of BEX's obligation to reimburse Nationsbank for performance under a 1992 letter of credit. BEX moves to dismiss the action on the ground of forum non conveniens. Nationsbank cross-moves for default judgment.² For the following reasons, the defendant's motion to dismiss is denied; plaintiff's motion for default judgment also is denied.

BACKGROUND

Plaintiff is a bank with its principal place of business in Miami, Florida. Defendant is a bank with its principal place of business in Madrid, Spain; in addition, it has several representative offices in the United States, including New York and Florida. This dispute arises out of an irrevocable letter of credit (the "Letter of Credit") issued by BEX in Mataro, Spain, in June of 1992 for the account of its customer, Centro Textil Moda ("Centro").³ The Letter of Credit was issued in favor of Nutmeg Mills ("Nutmeg"), a Tampa, Florida company, to facilitate Centro's purchase of Nutmeg's goods. At BEX's request, Nationsbank confirmed the Letter of Credit and authorized Nutmeg to claim payment from Nationsbank in United States dollars. Nationsbank was to be reimbursed by BEX's offices in the United States. The Letter of Credit was amended in December, 1992, (the "Amended Letter of Credit"),⁴ to reflect a change in the shipping location.

On January 7, 1993, Nutmeg presented documents to Nationsbank in Florida pursuant to the Amended Letter of Credit and requested that Nationsbank honor a time draft at maturity in the amount of $165,993.35. Nationsbank determined that the documents conformed to the requirements of the Amended Letter of Credit, accepted the time draft, and forwarded the documents to BEX in Spain. Thereafter, BEX claimed that some of the documents were not in conformance with the Amended Letter of Credit and returned the documents to Nationsbank in Florida. BEX refused to reimburse Nationsbank when Nationsbank subsequently honored the time draft and resubmitted the documents to BEX. Nationsbank filed this suit for reimbursement and other expenses incurred as a result of BEX's failure to honor the Amended Letter of Credit.

DISCUSSION

A. Forum Non Conveniens

Under the common law doctrine of forum non conveniens, a court with otherwise proper jurisdiction and venue may refrain from exercising jurisdiction when another significantly more convenient forum is available. See In re Union Carbide Gas Plant Disaster at Bhopal, 634 F.Supp. 842 (S.D.N.Y.), aff'd as mod., 809 F.2d 195 (2d Cir.), cert. denied sub nom., Executive Committee Members v. Union of India, 484 U.S. 871, 108 S.Ct. 199, 98 L.Ed.2d 150 (1987). The Supreme Court has held that a district court has broad discretion in deciding whether to dismiss an action on grounds of forum non conveniens. See Piper Aircraft v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266-67, 70 L.Ed.2d 419 (1981). Federal courts generally find dismissal proper only when the alternate forum is a state court or a court of another country. 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure, § 3828 at 279-280 (1986).

In deciding a motion to dismiss on forum non conveniens grounds, a court first, as a threshold matter, must examine the availability of an alternate forum. See Gulf Oil v. Gilbert, 330 U.S. 501, 506-07, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947) (finding that the application of the doctrine of forum non conveniens "presupposes at least two forums in which the defendant is amenable to process"). Next, the court will consider plaintiff's choice of forum. See Piper Aircraft, 454 U.S. at 241, 102 S.Ct. at 258. Finally, the court will balance relevant private and public interest factors. See Gilbert, 330 U.S. 501, 67 S.Ct. 839; Koster v. Lumbermens Mutual Casualty Company, 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947); see also, Blanco v. Banco Industria de Venezuela, SA, 997 F.2d 974 (2d Cir.1993); Zweig v. National Mortgage Bank of Greece, No. 91 Civ. 5482, 1993 WL 227663, 1993 U.S.Dist. LEXIS 8460 (S.D.N.Y. June 17, 1993).

BEX argues that Spain is a more convenient forum than New York: the transaction underlying the dispute was by a Spanish bank, on behalf of its Spanish customer, and no act relating to the dispute occurred in New York as both BEX and Centro are located in Spain.⁵ Plaintiff, on the other hand, contends that New York is the proper forum: Nationsbank is entitled to be heard in an American court, the evidence is available in New York, and Spain would be an inconvenient and expensive forum for Nationsbank. (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss on Grounds of Forum Non Conveniens and in Support of Nationsbank of Florida, N.A.'s Cross-Motion for a Default Judgment or for Summary Judgment ("Plaintiff's Memo.").)

In addressing a forum non conveniens motion, a district court first must ascertain whether the proposed alternate forum is adequate. See Piper, 454 U.S. at 254, n. 22, 102 S.Ct. at 265, n. 22. This adequacy requirement generally is satisfied when the defendant is "amenable to process" in another jurisdiction. Gilbert, 330 U.S. at 506-07, 67 S.Ct. at 842. Because BEX is amenable to suit in Spain, (Declaration of Christina Bustillo Muñoz Sworn to on June 10, 1993 ¶ 2 ("Muñoz Decl.")), Spain is an adequate alternate forum. The threshold requirement of adequacy, therefore, is satisfied, and the remaining question is whether Spain is a significantly more convenient forum than the United States.

1. Plaintiff's Choice of Forum

In Gilbert the Supreme Court held that plaintiff's choice of forum should be overturned only when the balance of factors is strongly on the side of the defendant. See Gilbert, 330 U.S. at 508, 67 S.Ct. at 843. Moreover, there is a home forum preference when an American plaintiff sues a foreign defendant. See, e.g., Flynn v. General Motors, 141 F.R.D. 5, 8 (E.D.N.Y.1992) (finding that the complaint of an American citizen should not be dismissed on forum non conveniens grounds "unless there is a showing by defendant that trial in the United States would be unjust, oppressive or vexatious, and not merely inconvenient"); Mutual Export Corp. v. Westpac Banking, 742 F.Supp. 161 (S.D.N.Y.1990) (applying the home forum preference in the case of a Delaware plaintiff against an Australian defendant in New York court); Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633 (2d Cir.1956) (Pennsylvania plaintiff versus Canadian defendant in New York court), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76. A plaintiff's "United States citizenship and residence ... are factors weighing significantly against forum non conveniens dismissal." Flynn, 141 F.R.D. at 8.

While several courts have held that an American citizen does not have an absolute right to sue in an American court, these same courts have been reluctant to allow a forum non conveniens motion where dismissal would force an American plaintiff to seek remedy in a foreign court. See, e.g., Burt v. Isthmus Develop. Co., 218 F.2d 353, 357 (5th Cir.), cert. denied, 349 U.S. 922, 75 S.Ct. 661, 99 L.Ed. 1254 (1955) (finding that courts should require "positive evidence of unusually extreme circumstances and be thoroughly convinced that material injustice is manifest" before denying citizen access to courts of this country); accord Leasco Data Processing Equipment v. Maxwell, 468 F.2d 1326 (2d Cir.1972) (applying the Burt standard in determining that defendant's claims of inconvenience did not meet level required to dismiss the complaint of an American citizen in favor of an English court).

Citing Piper Aircraft, supra, BEX claims that the traditional deference accorded a plaintiff's choice of forum does not apply in the instant case because New York is not Nationsbank's "home forum." (Defendant's Memo. at 3.) BEX's argument, however, is not an accurate interpretation of the Court's analysis in Piper. In that case, the Court found that the strong presumption in favor of the plaintiff's choice of forum does not apply to a Scottish, or "foreign," plaintiff. In determining whether to allow the presumption, the Court distinguished between "citizens or residents" and "foreign plaintiffs." Piper, 454 U.S. at 255, 102 S.Ct. at 265. This distinction is not applicable here, as plaintiff is a United States citizen.

By bringing suit in the United States, Nationsbank has chosen its "home forum," and its choice is entitled to deference. Dismissing this action on forum non conveniens grounds based on the determination that Spain is a more convenient forum than the United States improperly would relegate Nationsbank to seeking redress in a foreign court.⁶ Moreover, BEX was unable either in its brief or at oral argument to offer any evidence of "unusually extreme circumstances" demonstrating that "material injustice is manifest" to justify overturning plaintiff's choice in favor of a foreign forum. Burt, 218 F.2d at 357. Thus, the final determination is whether the balance of private and public interest factors favors dismissal.

B. Balancing Test

1. Private Interests

The private interests of the parties to be considered while determining whether the balance of circumstances weighs in favor of dismissal include: (a) relative ease of access to sources of proof; (b) availability of process for compelling attendance of unwilling witnesses and costs of obtaining attendance of witnesses; and (c) all other practical problems that make trial of a case "easy,...