Philipps v. Talty

• Decision Date: 28 May 2008
• Docket Number: Civil No. 07-382-JL.
• Citation: 555 F.Supp.2d 265
• Parties: Franklin PHILIPPS, as the Natural Parent of Ayandi Philipps, Yvonne Lazare, as the Natural Parent of Ayandi Philipps, Joseph H. Ganguzza, as the Personal Representative of the Estate of Ayandi Philipps, Deceased, and Franklin Philipps, individually, v. Hubert TALTY.
• Court: U.S. District Court — District of New Hampshire

555 F.Supp.2d 265

Franklin PHILIPPS, as the Natural Parent of Ayandi Philipps, Yvonne Lazare, as the Natural Parent of Ayandi Philipps, Joseph H. Ganguzza, as the Personal Representative of the Estate of Ayandi Philipps, Deceased, and Franklin Philipps, individually, v. Hubert TALTY.

Civil No. 07-382-JL.

United States District Court, D. New Hampshire.

May 28, 2008.

COPYRIGHT MATERIAL OMITTED

Curt Obront, Paul A. McKenna, McKenna & Obront, Miami, FL, Paul A. Rinden, Rinden Professional Association, Concord, NH, for Plaintiffs.

Debra L. Mayotte, Desmarais Ewing & Johnston PLLC, Manchester, NH, for Defendant.

ORDER

JOSEPH N. LAPLANTE, District Judge.

Plaintiffs Franklin Philipps and Yvonne Lazare brought this personal injury and wrongful death action against defendant Hubert Talty arising out of a 2005 automobile collision on the island of St. Martin. The plaintiffs are the parents of Ayandi Philipps, who was killed in the accident.¹

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute...." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Jurisdiction, unchallenged by the defendant, lies in this court under 28 U.S.C. § 1332 (diversity) (2000), and specifically § 1332(a)(2) (suit between citizen of a state and citizens or subjects of a foreign state).

The defendant moved to dismiss this matter under the doctrine of forum non conveniens. See Fed.R.Civ.P. 12(b)(2). After a hearing, and for the reasons set forth infra, the motion to dismiss is granted, albeit conditionally, and without prejudice.

I. BACKGROUND

On December 7, 2005, plaintiff Ayandi Philipps, an infant, was a passenger in a car driven by her father, plaintiff Franklin Philipps, when it was struck by another vehicle driven by defendant Hubert Talty. The accident took place in St. Martin, located on a Caribbean island under the governance of two nations: France and the Netherlands Antilles.² Franklin Philipps and Ayandi Philipps were residents of the southern Dutch half of the island, Sint Maarten. Franklin Philipps was seriously injured in the crash and Ayandi Philipps was killed. A French court subsequently found Hubert Talty guilty of involuntary homicide in Ayandi Philipps's death.

The plaintiffs, apparently exercising a right under the provisions of the defendant's insurance policy, brought a wrongful death action against the defendant's insurance carrier in the United States District Court for the Southern District of Florida. The insurance company moved to dismiss that case under the doctrine of forum non conveniens, and alternatively, to transfer venue to the District of New Hampshire under 28 U.S.C. § 1404(a) (2000). On June 27, 2007, District Judge Huck of the Southern District of Florida dismissed the case on forum non conveniens grounds with leave to re-file in New Hampshire or St. Martin. The plaintiffs then filed the current action in this court on November 29, 2007.

II. THE APPLICABLE LEGAL STANDARD

Forum non conveniens is "a discretionary tool for the district court to dismiss a claim, even when it has proper jurisdiction." Adelson v. Hananel, 510 F.3d 43, 52 (1st Cir.2007) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) and Koster v. Lumbermen Mut. Cos. Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947)).

[A] supervening venue provision, permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined, ... forum non conveniens has continuing application [in federal courts] only in cases where the alternative forum is abroad, and perhaps in rare cases where a state or territorial court serves litigational convenience best.

Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., ___ U.S. ___, 127 S.Ct. 1184, 1190, 167 L.Ed.2d 15 (2007) (brackets in original) (internal citations omitted) (citing American Dredging Co. v. Miller, 510 U.S. 443, 449 n. 2, 453, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) and 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3828, at 620-23 and nn. 9-10 (3rd ed. 2007)).

This discretionary power, however, is "limited by the overarching principle that a plaintiffs choice of forum should rarely be disturbed." Adelson, 510 F.3d at 52 (quotations omitted); see also Howe v. Goldcorp Inv., Ltd., 946 F.2d 944, 950 (1st Cir.1991) (forum non conveniens is intended to avoid trials in places so inconvenient that transfer is needed to avoid serious unfairness). A defendant moving for dismissal on forum non conveniens grounds "bears the heavy burden of establishing that an adequate alternative forum exists and that considerations of convenience and of judicial efficiency strongly favor litigating the claim in the second forum." Adelson, 510 F.3d at 52 (quotations omitted) (citing Iragorri v. Int'l Elevator, Inc., 203 F.3d 8, 12 (2000)). Where, as here, "the plaintiffs choice is not its home forum, however, the presumption in the plaintiffs favor applies with less force, for the assumption that the chosen forum is appropriate in such cases is less reasonable." Sinochem, 127 S.Ct. at 1191 (quotations omitted) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). See Ford v. Brown, 319 F.3d 1302, 1307 (11th Cir.2003) ("bias towards plaintiffs choice of forum is much less pronounced when the plaintiff is not an American citizen or resident." (quotations omitted)).

Although this standard has been described as requiring a showing of "oppressiveness and vexation to a defendant as to be out of all proportion to [a] plaintiffs convenience," Nowak v. Tak How Inv., Ltd., 94 F.3d 708, 720 (1st Cir.1996), the First Circuit subsequently clarified that "the term `oppressiveness and vexation' neither created an independent standard nor raised the bar for dismissal in forum non conveniens cases." Iragorri, 203 F.3d at 15.³

III. ANALYSIS

To obtain a dismissal on forum non conveniens grounds, a defendant must make a two-part showing: (1) "that an adequate alternative forum exists," and (2) "and that considerations of convenience and judicial efficiency strongly favor litigating the claim in the alternative forum." Iragorri, 203 F.3d at 12 (citing Mercier v. Sheraton Int'l, Inc., 935 F.2d 419, 423-24 (1st Cir.1991)); Adelson, 510 F.3d at 52.

A. Alternative Forum

"Courts generally deem the first requirement satisfied if the defendant demonstrates that the alternative forum addresses the types of claims that the plaintiff has brought and that the defendant is amendable to service of process there." Iragorri, 203 F.3d at 12 (citing Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252). The plaintiffs do not claim that the French courts of St. Martin would provide anything less than full redress in a wrongful death case like theirs. The disagreement here is over the defendant's amenability to defending suit in St. Martin.

The defendant believes he has satisfied this component of the alternative forum requirement with an express certification, on the record in this litigation (both in a pleading and in an attached affidavit) that he consents to the personal jurisdiction of the St. Martin courts for purposes of this action. The plaintiffs question how such a stipulation is enforceable in St. Martin, arguing that a French court there cannot compel the defendant's attendance. What is more, say the plaintiffs (and the defendant disagrees), since the defendant is now a felon in St. Martin based on the involuntary homicide conviction arising from the accident, the French Immigration Code renders him unable to enter St. Martin.

While the vast majority of factors to be considered under the applicable precedent militate in favor of a forum non conveniens dismissal in favor of St. Martin as a venue (see infra Part II(B)), the court shares the plaintiffs' concerns regarding the defendant's amenability to service of process, compliance with a St. Martin court's orders, and satisfaction of its eventual judgment. At oral argument, defendant's counsel assured the court not only that the defendant would submit to St. Martin jurisdiction, but that he would personally appear there, and that his insurance carrier (which retained defendant's counsel) would satisfy any adverse judgment up to the policy limit. These assurances, in addition to the conditions set forth infra at Part IV, satisfy the "alternative forum" requirement. See Mercier v. Sheraton Int'l, Inc., 981 F.2d 1345, 1350 (1st Cir.1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2346, 124 L.Ed.2d 255 (1993).

B. Considerations of convenience and judicial efficiency

"The second-stage inquiry ... directs the trial court to balance an array of factors relevant to both private and public interests, and to ascertain whether that balance justifies dismissal." Iragorri, 203 F.3d at 15. This balancing test "hinges on whether [the defendant] can show that considerations of convenience and judicial efficiency strongly favor the proposed alternative forum." Id. "In all events, as to both private and public interests, flexibility is the watchword." Id. at 12. The First Circuit has noted that while the compendia of factors provided by the Supreme Court is a helpful starting point, "not every item applies in every case and, in the last analysis, the list of factors is illustrative rather than all-inclusive. The ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice." Id. (quotations and brackets omitted) (quoting Koster, 330 U.S. at 527, 67 S.Ct. 828).

1. Private-interest factors

The "private interest" factors have been discussed by both the Supreme Court and the First Circuit: "the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining...