Rudetsky v. O'DOWD

• Decision Date: 15 May 1987
• Docket Number: No. 86-CV-3870 (JBW).,86-CV-3870 (JBW).
• Citation: 660 F. Supp. 341
• Parties: Sally RUDETSKY, as Administratrix of the Estate of Michael Rudetsky and for herself, individually, Plaintiff, v. George O'DOWD, a/k/a "Boy George," Defendant.
• Court: U.S. District Court — Eastern District of New York

660 F. Supp. 341

Sally RUDETSKY, as Administratrix of the Estate of Michael Rudetsky and for herself, individually, Plaintiff, v. George O'DOWD, a/k/a "Boy George," Defendant.

No. 86-CV-3870 (JBW).

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

May 15, 1987.

Harry H. Lipsig, New York City, by Harry H. Lipsig, Jay W. Dankner, Alan A. Beaven, for plaintiff.

Orans, Elsen & Lupert, New York City, by Sheldon H. Elsen, Clement J. Colucci, John B. Orenstein, for defendant.

MEMORANDUM and ORDER

WEINSTEIN, Chief Judge:

Defendant George O'Dowd moves to dismiss on grounds of forum non conveniens this action by the administratrix of the estate of Michael Rudetsky. For the reasons stated below, the motion is denied.

Michael Rudetsky was a 27-year-old songwriter. George O'Dowd, sometimes known as Boy George, is a singer. On August 3, 1986, Rudetsky contracted with O'Dowd and his agents in New York to work in London. O'Dowd was to provide Rudetsky with accommodations.

Two days later, while working with O'Dowd in Brixton, England, Rudetsky ingested heroin. When it appeared that Rudetsky was not well, O'Dowd put him to bed. The next morning, Rudetsky died of morphine intoxication. The British coroner has concluded that the death was probably caused by "misadventure," rather than by any criminal activity.

The decedent's mother sued O'Dowd in the New York State Supreme Court. The action was removed to this court. 28 U.S.C. § 1441. The gist of the substantive dispute is whether the defendant breached a duty to the decedent by failing to provide proper medical care when he knew or should have known that Rudetsky was in danger.

A preliminary question is whether, under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), state or federal law of forum non conveniens applies in a diversity case. The Supreme Court has, on three occasions, explicitly left this issue unresolved. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 n. 13, 102 S.Ct. 252, 262 n. 13, 70 L.Ed.2d 419 (1981); Gulf Oil Co. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947) (New York law same as federal law); Williams v. Green Bay & W.R. Co., 326 U.S. 549, 559, 66 S.Ct. 284, 289, 90 L.Ed. 311 (1946) (same). The Second Circuit has recently reiterated that the similarity between New York law and federal law on forum non conveniens doctrine obviates the need to resolve the Erie question. Schertenleib v. Traum, 589 F.2d 1156, 1162 n. 13 (2d Cir. 1978). See also Olympic Corp. v. Societe Generale, 462 F.2d 376, 378 (2d Cir.1972). But cf. Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 484, 478 N.Y.S.2d 597, 602, 467 N.E.2d 245, 250 (1984) (diverging from federal doctrine on whether alternative forum must be available to consider forum non conveniens claims), cert. denied, 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 (1985). For simplicity, federal law will be applied.

The "ultimate inquiry" in a forum non conveniens analysis is where the place of trial will "best serve the convenience of the parties and the ends of justice." Koster v. Lumbermens Mut. Casualty Co., 330 U.S. 518, 527, 67 S.Ct. 828, 833, 91 L.Ed. 1067 (1947). Because the factors relevant to that inquiry are heavily oriented to the individual case, "forum non conveniens determination is committed to the sound discretion of the trial court." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419. See also Gilbert, 330 U.S. at 508, 67 S.Ct. at 843; In re: Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December, 1984, 809 F.2d 195, 202 (2d Cir.1987); Alcoa Steamship Co., Inc. v. M/V Nordic Regent, 654 F.2d 147, 158 (2d Cir.1981) (en banc).

In making its determination, the trial court must consider the following five factors of "private interest":

1 the relative case of access to sources of proof; 2 availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; 3 possibility of view of premises, if view would be appropriate to the action; and 4 all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be 5 questions as to the enforcibility of a judgment if one is obtained.

Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 539, 843, 91 L.Ed. 1055 (1947). At least five additional factors of "public interest" also play a role in the balancing:

1 Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. 2 Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. 3 In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. 4 There is a local interest in having localized controversies decided at home. 5 There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

Id., 330 U.S. at 508-09, 67 S.Ct. at 843.

Multivariate analysis of these many relevant, but often opposing, vectors is complex. Yet, if "central emphasis were placed on any one factor," the doctrine "would lose much of the very flexibility that makes it so valuable." Piper Aircraft, 454 U.S. at 249-250, 102 S.Ct. at 263. Since the doctrine was designed as an "instrument of justice," Rogers v. Guaranty Trust Co., 288 U.S. 123, 151, 53 S.Ct. 295, 305, 77 L.Ed. 652 (1933) (Cardozo, J., dissenting), it follows that each case "turns on its facts." Williams v. Green Bay & W.R. Co., 326 U.S. 549, 557, 66 S.Ct. 284, 288, 90 L.Ed. 311 (1946). Eschewed are any "rigid rules to govern discretion." Piper Aircraft, 454 U.S. at 249, 102 S.Ct. at 262. Emphasized is the mercy dispensing power of the trial judge in the individual case, rather than any unyielding rules of justice that would apply indiscriminately in all cases.

Analysis must, nevertheless, start with the proposition that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gilbert, 330 U.S. at 508, 67 S.Ct. at 843. Where the plaintiff's choice of forum is the judicial system of her own country, it can be assumed that such a choice was made "because it is convenient," and not "solely in order to harass the defendant or take advantage of favorable law." Piper Aircraft, 454 U.S. at 249 n. 15, 102 S.Ct. at 262 n. 15. Because a "central purpose" of the forum non conveniens inquiry is "to ensure that the trial is convenient," 454 U.S. at 256, 102 S.Ct. at 266, the plaintiff's choice of forum is entitled to even greater deference than usual when the plaintiff has chosen her home forum. 454 U.S. at 255, 102 S.Ct. at 266. "In any balancing of conveniences, a real showing of convenience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience of the defendant...." Koster v. Lumbermens Mut. Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 832, 91 L.Ed. 1067 (1947). See also Swift & Co. Packers v. Compania Columbiana del Caribe, 339 U.S. 684, 697, 70 S.Ct. 861, 869, 94 L.Ed. 1206 (1950) ("suit by a United States citizen against a foreign respondent brings into force considerations very different from those in suits between foreigners").

A plaintiff should not be deprived of her home jurisdiction "except upon a clear showing of facts which either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's convenience, which may be shown to be slight or nonexistent, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court's own administrative and legal problems." Koster v. Lumbermens Mut. Casualty Co., 330 U.S. at 524, 67 S.Ct. at 831-32. Accord, Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326, 1344 (2d Cir.1972); Olympic Corp. v. Societe Generale, 462 F.2d 376, 378 (2d Cir. 1972); Founding Church of Scientology v. Verlag, 536 F.2d 429, 435 (D.C.Cir.1976) ("great significance" that both parties are United States residents); Hoffman v. Goberman, 420 F.2d 423, 428 (3d Cir.1970) (election of home forum should not be disregarded absent "manifest injustice" to defendant); Burt v. Isthmus Development Co., 218 F.2d 353, 357 (5th Cir.1955) (requiring "extreme circumstances" and "material injustice" before denying a citizen access to courts of this country), cert. denied, 349 U.S. 922, 75 S.Ct. 661, 99 L.Ed. 1254 (1955).

Like any of the many relevant considerations, the home forum of the plaintiff is not itself dispositive of the forum non conveniens inquiry. Piper Aircraft, 454 U.S. at 255 n. 23, 102 S.Ct. at 266 n. 23. See also Alcoa S.S. Co., Inc. v. M/V Nordic Regent, 654 F.2d 147, 152 (2d Cir.1981) (citizenship "not an impenetrable shield against dismissal"); id. at 154 (no "talismanic significance" accorded citizenship); Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 346 (8th Cir.1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 708, 79 L.Ed.2d 172 (1984); Macedo v. Boeing Co., 693 F.2d 683, 688 (citizens deserve "somewhat more deference," but dismissal not automatically barred); Murty v. Aga Khan, 92 F.R.D. 478, 480 (E.D.N.Y.1981) (sending case involving a New York resident plaintiff to France, the defendant's domicile). As Chief Judge Fuld noted in Silver v. Great Amer. Ins. Co., 29 N.Y.2d 356, 362, 328 N.Y.S.2d 398, 403, 278 N.E.2d 619, 622 (1972), relaxing the previous New York rule that had made citizenship dispositive in transitory causes of action:

It has become increasingly apparent that a greater flexibility in applying the doctrine is not only wise but, perhaps, necessary. (See, e.g., Rosenberg, One Procedural Genie Too Many or Putting Seid

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