Palacios v. the Coca–cola Co.

• Decision Date: 19 November 2010
• Docket Number: No. 10 Civ. 3120(RJS).,10 Civ. 3120(RJS).
• Citation: 757 F.Supp.2d 347
• Parties: José Armando PALACIOS, et al., Plaintiffs,v.THE COCA–COLA COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

757 F.Supp.2d 347

José Armando PALACIOS, et al., Plaintiffs,

v.THE COCA–COLA COMPANY, et al., Defendants.

No. 10 Civ. 3120(RJS).

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

Nov. 19, 2010.

Emily Maruja Bass, Law Offices of Emily Bass, New York, NY, Piper M. Hendricks, Fried, Frank, Harris, Shriver & Jacobson, LLP, Terrence Patrick Collingsworth, Conrad & Scherer, LLP, Washington, DC, for Plaintiffs.Adam Michael Abensohn, Faith E. Gay, and Sanford Ian Weisburst, Quinn Emanuel Urquhart Oliver & Hedges LLP, New York, NY, for Defendant.

OPINION AND ORDER

RICHARD J. SULLIVAN, District Judge:

Plaintiffs, Guatemalan labor activists and their family members, bring this action against Defendants, The Coca–Cola Company (“Coca–Cola” or “Defendant”) and ten unnamed Coca–Cola agents, seeking redress for violence that occurred in Guatemala.¹ Now before the Court is Defendant Coca–Cola's motion to dismiss for forum non conveniens (“FNC”). For the reasons that follow, the motion is granted.

I. Background

A. Facts ²

This case concerns allegations of violence directed at two distinct groups of Plaintiffs. The Court will briefly recite the allegations pertaining to each group, accepting as true all well-pleaded facts asserted in the Complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 572, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

1. The Palacios Plaintiffs

Plaintiff José Armando Palacios worked for twenty-seven years at a Coca–Cola–affiliated processing plant in Guatemala City that was operated by Industria de Café S.A. (“INCASA”). (Compl. ¶ 31.) He became a member of the union Sindicato de Trabajadores de la Industria del Café y Bebidas Coca–Cola (“SITINCA”) on the day that he began working at INCASA. ( Id.) Although he left SITINCA when he began work as a security guard in 1991, Palacios re-joined SITINCA in January 2004. ( Id. ¶¶ 32–33.)

On the same day that Palacios re-joined SITINCA, he received a death threat from INCASA personnel manager Eduardo Garcia, who threatened to make him “disappear.” ( Id. ¶ 33.) On June 18, 2004, two men shot at Palacios repeatedly but unsuccessfully from the plant parking lot. ( Id. ¶ 36.) Over the next ten months, Palacios received additional unspecified threats, but was reluctant to report these incidents to the police. ( Id. ¶ 38.) Following a November 21, 2004 incident involving a verbal threat at the plant, Palacios filed a report with INCASA management. ( Id. ¶ 39.)

On April 16, 2005, two men broke into Palacios's home, tied up his son, pointed guns at his son and wife, and threatened to kill them all if Palacios continued his union involvement. ( Id. ¶ 40.) On May 6, 2005, INCASA fired Palacios. ( Id. ¶ 41.) On October 30, 2005, an armed man appeared at Palacios's home while Palacios was away and threatened that he would return to look for Palacios and his family. ( Id. ¶ 44.)

On January 26, 2006, Stan Gacek, a private consultant under contract with Coca–Cola, indicated that Coca–Cola would pay for Palacios's security if he would waive his rights to reinstatement at INCASA. ( Id. ¶¶ 48, 50.) Palacios refused the offer. ( Id. ¶ 50.) On January 28, 2006, a man seeking to kill Palacios mistakenly killed another man in front of Palacios's house. ( Id. ¶ 51.) Palacios then fled to the United States on February 6, 2006. ( Id. ¶¶ 52, 57.)

In early February 2006, Palacios was approached by Rodrigo Romero, a Costa Rican lawyer representing Coca–Cola, who attempted to convince Palacios to accept a financial settlement. ( Id. ¶ 54.) Palacios declined. ( Id.) On February 9, 2006, Palacios met with Gacek in New York. ( Id. ¶ 57.) Gacek requested documentation concerning the case and told Palacios that he would try to convince Coca–Cola to “do the right thing.” ( Id.) Palacios provided the documentation but received no further communication from Gacek. ( Id.)

Palacios, his wife, his son, and his daughter all now reside in the United States. ( Id. ¶ 58.) Palacios's daughter is not named as a Plaintiff, but both Palacios and his wife bring claims on her behalf. ( Id. ¶¶ 8–9.)

2. The Vicente Plaintiffs

Plaintiff José Alberto Vicente Chávez (“Vicente”) has been a prominent, successful union leader since the 1990s. ( Id. ¶ 61.) Between February 21, 2008 and February 26, 2008, he had several confrontations with INCASA management during his involvement in collective bargaining negotiations. ( Id. ¶¶ 62–63.) On March 1, 2008, four assailants attacked the Vicente family at a local bus station, murdering Vicente's son and nephew and gang-raping his sixteen-year-old daughter. ( Id. ¶¶ 64–65.) Vicente and his surviving family members went into hiding after the attack, but Vicente has continued to receive death threats. ( Id. ¶ 66.)

3. The Coca–Cola Company

Defendant Coca–Cola, the world's largest manufacturer, distributor, and marketer of soft drinks, is a Delaware corporation with corporate headquarters in Atlanta, Georgia. ( Id. ¶ 16.) By maintaining a series of “Bottler's Agreements” ( id. ¶ 18), Coca–Cola requires bottlers worldwide to adhere to a set of “Workplace Rights” standards ( id. ¶ 20). Coca–Cola is or was a minority owner of INCASA. ( Id. ¶ 28.)

B. Procedural History

Plaintiffs commenced this action by filing a Complaint in New York Supreme Court, New York County, on February 25, 2010, asserting claims “under New York state common law ... and (in the alternative) under the laws of Guatemala.” ( Id. ¶ 2.) The Complaint includes causes of action for wrongful death, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, negligent hiring and supervision, negligent undertaking, battery, assault, trespass, false imprisonment, unjust enrichment, and consumer fraud. Coca–Cola removed the action to this Court on April 13, 2010 and moved to dismiss on June 7, 2010. The motion to dismiss was fully submitted on July 21, 2010.

II. Discussion

“The doctrine of forum non conveniens is a discretionary device permitting a court in rare instances to dismiss a claim even if the court is a permissible venue with proper jurisdiction over the claim.” Carey v. Bayerische Hypo–Und Vereinsbank AG, 370 F.3d 234, 237 (2d Cir.2004) (internal citations and quotation marks omitted). As the Supreme Court has explained,

A federal court has discretion to dismiss a case on the ground of forum non conveniens when an alternative forum has jurisdiction to hear the case, and trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to plaintiff's convenience, or the chosen forum is inappropriate because of considerations affecting the court's own administrative and legal problems.

Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 429, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (alterations and internal quotation marks omitted). Because FNC is “a nonmerits ground for dismissal,” a district court “may dispose of an action by a forum non conveniens dismissal, bypassing questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant.” Id. at 432, 127 S.Ct. 1184 (internal citations and quotation marks omitted).

The United States Court of Appeals for the Second Circuit has articulated a three-part test for resolving a motion to dismiss for FNC:

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)); accord Abdullahi v. Pfizer, Inc., 562 F.3d 163, 189 (2d Cir.2009) (“The three-step analysis set forth in Iragorri ... applies.”). To prevail under the three-step test, “[t]he defendant bears the burden of establishing that a presently available and adequate alternative forum exists, and that the balance of private and public interest factors tilts heavily in favor of the alternative forum.” Abdullahi, 562 F.3d at 189. The Court will examine and apply each prong of the FNC test in turn.

A. Deference to Plaintiffs' Choice of Forum

“Any review of a forum non conveniens motion begins with ‘a strong presumption in favor of the plaintiff's choice of forum.’ ” Norex, 416 F.3d at 154 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). As a general matter, “unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). In applying this presumption, courts nevertheless recognize that “the degree of deference to be given to a plaintiff's choice of forum moves on a sliding scale” depending on the convenience reflected by the given choice. Iragorri, 274 F.3d at 71. Along that sliding scale, the greatest deference is afforded a plaintiff's choice of its home forum, see id.; accord Piper, 454 U.S. at 255–56, 102 S.Ct. 252, while “less deference” is afforded a foreign plaintiff's choice of a United States forum, Norex, 416 F.3d at 154 (quoting Iragorri, 274 F.3d at 71).

The reason for judicial deference to a plaintiff's choice of its home forum is necessarily linked to the presumption of convenience that attends such a choice. Piper, 454 U.S. at 255–56, 102 S.Ct. 252 (“When the home forum has been chosen, it is reasonable to assume that this choice is convenient.”). Thus, “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...