NETWORLD COMMUNICATIONS, CORP. v. CROATIA AIRLINES, D.D.
OPINION fld. Signed by Judge Susan D. Wigenton on 9/23/14. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CROATIA AIRLINES, D.D., et al.,
Civil Action No. 13-4770 (SDW)
September 23, 2014
WIGENTON, District Judge.
This matter comes before the Court on the motion of Defendants Croatia Airlines, D.D.
(“OU”) and Lidija Saban (“Saban”) (collectively, “Defendants”) to dismiss on the grounds of
forum non conveniens. Dkt. No. 26. Plaintiff Networld Communications Corp. (“NCC”) opposes
this motion. Dkt. No. 36. This motion was decided without oral argument pursuant to Federal
Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below, Defendants’
motion is DENIED.
NCC is a New Jersey corporation with its principal place of business in Parsippany, New
Jersey. See First Am. Compl., Dkt. No. 11 ¶ 9. OU is a publicly traded Croatian corporation
headquartered in Zagreb, Croatia, with the majority of its stock owned by the Croatian government.
Id. at ¶ 10. Defendant Saban is an OU employee who, for the past decade, was primarily
responsible for OU’s relationship with NCC. Id. at ¶ 11.
Since at least 1997, NCC has served as OU’s General Sales Agent (“GSA”) in the United
States and Canada. Id. at ¶ 2. As GSA, NCC had a variety of responsibilities relating to the
marketing and sale of OU flights to North American customers, including establishing
relationships with travel agents, implementing sales initiatives, and providing customer call center
services. Id. During the time period in which NCC served as GSA, OU saw its North American
sales grow from $2 million in 1997 to $26 million in 2012. Id.
NCC and OU’s relationship was governed by a General Sales Agency Agreement
(“Agency Agreement”). The Agency Agreement was executed by the parties on July 1, 2011,
became effective January 1, 2012, and was to last for four years. See id. at ¶ 3; see also Agency
Agreement, attached as Ex. A to First Am. Compl., Dkt. No. 11-1. Importantly for the instant
motion, the Agency Agreement contained the following provision:
Governing Law – Choice of Jurisdiction
This Agreement shall be governed by and construed in accordance
with the laws of the Republic of Croatia.
All disputes arising out of this Agreement that cannot be resolved
by negotiation shall be submitted to the court of competent
jurisdiction in Zagreb, Republic of Croatia, which jurisdiction shall
See Agency Agreement, attached as Ex. A to First Am. Compl., Dkt. No. 11-1.
On or about July 30, 2013, OU notified NCC that it was terminating the Agency Agreement
effective September 1, 2013. First Am. Compl., Dkt. No. 11 ¶ 4.
NCC brought suit against OU on September 8, 2013. See Compl., Dkt. No. 1. NCC’s First
Amended Complaint was filed on December 9, 2013. See First Am. Compl., Dkt. No. 11. In this
pleading, NCC asserts, inter alia, OU breached the Agency Agreement by terminating the contract
without good cause and, further, that Defendants engaged in a fraudulent conspiracy to deprive
NCC of commissions and other revenue to which NCC is entitled. See id. NCC alleges the
following causes of action: (1) breach of contract for improper termination; (2) breach of the
implied covenant of good faith and fair dealing for improper termination; (3) breach of contract
for failure to pay amounts due; (4) breach of the implied covenant of good faith and fair dealing
for failure to pay amounts due; (5) fraud; (6) breach of the contract for cancellation and return of
the guarantee; (7) declaratory judgment; (8) accounting; (9) unjust enrichment; and (10) tortious
interference with contract. See id.
On February 21, 2014, OU filed the instant motion to dismiss on forum non conveniens
grounds. See Dkt. No. 26. After the motion was fully briefed, see Dkt. Nos. 37, 38, NCC filed a
motion seeking to either strike a portion of OU’s reply or file a sur-reply. See Dkt. No. 39. On
April 15, 2014, the Court denied NCC’s motion to strike, but granted NCC leave to file a sur-reply.
See Order, Dkt. No. 42.
Defendants seek to dismiss the instant litigation based upon the presence of a forum
selection clause in the Agency Agreement. See Def. Br., Dkt. No. 26-1, at 5.
“[T]he appropriate way to enforce a forum-selection clause pointing to a state or foreign
forum is through the doctrine of forum non conveniens.” Atlantic Marine Const. Co., Inc. v. U.S.
Dist. Ct. for the Western Dist. of Tex., 134 S. Ct. 568, 580 (2014). While 28 U.S.C. § 1404(a) is
inapplicable in such cases, “because both § 1404(a) and the forum non conveniens doctrine from
which it derives entail the same balancing-of-interests standard, courts should evaluate a forumselection clause pointing to a nonfederal forum in the same way that they evaluate a forumselection clause pointing to a federal forum.” Id.
Traditionally, when considering a motion to dismiss based on forum non conveniens
grounds, a district court would analyze: (1) the availability of an alternative forum; (2) the amount
of deference to be accorded to the plaintiff's choice of forum; (3) the private interest factors; and
(4) the public interest factors. Tech. Dev. Co., Ltd. v. Onischenko, 174 F. App'x 117, 119-20 (3d
Cir. 2006). It was the defendant’s burden to demonstrate that an adequate alternative forum exists
as to all defendants and that public and private interest factors weighed heavily for dismissal. See
Lacey v. Cessna Aircraft Co., 862 F.2d 38, 44 (3d Cir. 1988) (“Lacey I”).
Recently, however, the Supreme Court addressed the application of the traditional forum
non conveniens analysis to a dispute in which the parties had agreed to a mandatory forum selection
clause and the plaintiff sought to bring suit in a different forum. See Atlantic Marine, 134 S. Ct.
at 581. The Supreme Court reasoned that, because a forum selection clause “represents the parties’
agreement as to the most proper forum,” a forum selection clause “should be given controlling
weight in all but the most exceptional cases.” Id. (quoting Stewart Org., Inc. v. Ricoh Corp., 487
U.S. 22, 31, 33 (1988)). Therefore, the Supreme Court held that, because the plaintiff agreed to
bring disputes only in a specific forum, the plaintiff’s choice of a different forum would be
accorded no weight, the plaintiff would bear the burden of demonstrating dismissal was
unwarranted, and the Court would not consider the private interest factors in its analysis. Id. at
The forum selection clause in Atlantic Marine was mandatory and the Supreme Court did
not address whether its holding should apply to cases in which the parties agreed to a permissive
forum selection clause. 1 While the Third Circuit has not directly addressed the issue, a majority
of courts have declined to apply Atlantic Marine in cases involving permissive forum selection
clauses. See Fin. Cas. & Sur., Inc. v. Parker, No. 14-0360, 2014 WL 2515136, at *3 (S.D. Tex.
June 4, 2014) (noting courts have “consistently declined to apply Atlantic Marine” when analyzing
a permissive forum selection clause); see also RELCO Locomotives, Inc. v. AllRail, Inc., --- F.
Supp. 2d ----, 2014 WL 1047153, at *8 (S.D. Iowa Mar. 5, 2014); Residential Fin. Corp. v. Jacobs,
No. 13-1167, 2014 WL 1233089, at *3 (S.D. Ohio Mar. 25, 2014); United States ex rel. MDI
Servs., LLC v. Fed. Ins. Co., No. 13-2355, 2014 WL 1576975, at *3 (N.D. Ala. Apr. 17, 2014).
But see United Am. Healthcare Corp. v. Backs, No. 13-13570, 2014 U.S. Dist. LEXIS 17408, at
*20-21 (E.D. Mich. Feb. 12, 2014). 2
In this case, the forum selection clause provides in pertinent part:
All disputes arising out of this Agreement that cannot be resolved
by negotiation shall be submitted to the court of competent
jurisdiction in Zagreb, Republic of Croatia, which jurisdiction shall
See Agency Agreement, attached as Ex. A to First Am. Compl., Dkt. No. 11-1 (emphasis added).
Here, the Court concludes that the Agency Agreement’s forum selection clause is permissive. If
the forum selection clause ended after the word “Croatia,” the clause might be construed as
mandatory. The inclusion of the modifier “which jurisdiction shall be non-exclusive[,]” however,
“‘A permissive clause authorizes jurisdiction in a designated forum but does not
prohibit litigation elsewhere,’ whereas ‘[a] mandatory clause . . . dictates an exclusive forum for
litigation under the contract.’” See Dawes v. Publish Am. LLLP, 563 F. App’x 117, 118 (3d Cir.
2014) (quoting Global Satellite Commc'n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1272 (11th
The Third Circuit has continued to draw a distinction between permissive and
mandatory forum selection clauses since Atlantic Marine was decided. See Dawes, 563 F.
App’x at 118 (reversing district court for concluding that a permissive forum selection mandated
evidences the parties’ intent that Zagreb is not the only forum in which disputes arising from the
contract can be brought. 3
Given that the forum selection clause here is permissive, this Court is satisfied that the
traditional forum non conveniens test embraced by the majority of post-Atlantic Marine courts
should be utilized here.
A. Availability of an Alternative Forum
Defendants argue that Croatia is an adequate alternative forum because they are amenable
to process in Croatia and NCC’s claims are cognizable in Croatian courts. See Defs. Br., Dkt. No.
26-1, at 10. In support of its assertion that NCC’s claims are cognizable, Defendants submit a
declaration from Danijela Simeunović, a Croatian attorney.
See Declaration of Danijela
Simeunović (“Simeunović Decl.”), Dkt. No. 26-3. Ms. Simeunović asserts that the instant dispute
would be heard in a special commercial court. See id. ¶ 4. Ms. Simeunović also declares:
Croatian law recognizes an action for breach of contract as a viable
cause of action against a defendant. Croatian law also recognizes a
number of other causes of action relating to a party’s performance
under a contract. Additionally, the Civil Obligations Law requires
contracting parties to act in accordance with good faith and fair
Croatian law recognizes the causes of action of unjust enrichment
The Civil Obligations Law provides that a non-breaching party may
recover compensatory damages due under the agreement.
The Courts in Croatia permit and require the exchange of
statements, documents, and records bearing on the matters relating
The parties do not address whether federal, New Jersey, or Croatian law should govern
this Court’s interpretation of the forum selection clause and what, if any, effect this choice of law
would have on this Court’s interpretation of Article 24. As this Court is not aware of any
decisions in those jurisdictions that suggest a court should ignore entire provisos within a forum
selection clause, this Court concludes that the forum selection clause is permissive.
to the dispute. The Croatian courts would have the power to compel
witnesses residing in Croatia to testify at trial.
Id. at ¶¶ 8-11. Finally, Defendants agreed to condition dismissal on their voluntary submission to
the jurisdiction of the courts of Zagreb, Croatia. Def. Br., Dkt. No. 26-1, at 9.
Even though NCC specifically agreed that any dispute arising from the Agency Agreement
could be brought in Croatia, NCC nonetheless argues Croatia is not an appropriate alternative
forum because Croatia’s legal system has “been in a state of crisis for several decades[,]”
adjudicating the dispute in Croatia could take over a decade, the Croatian Government (as OU’s
majority shareholder) will likely influence any proceedings against OU in a Croatian court, Croatia
does not have a direct counterpart to the New Jersey Sales Representative Rights Act or recognize
the causes of action for tortious interference with contract or for an accounting, and Croatian courts
are without power to compel production of documents if a party refuses to produce them. See Pl.
Opp’n Br., Dkt. No. 36; Declaration of Professor Alan Uzelac in Opposition to Defendants’
Motion to Dismiss on Forum Non Conveniens Grounds, Dkt. No. 36-2 ¶¶ 9-36; Declaration of
Zoran Marković in Opposition to Defendants’ Motion to Dismiss on Forum Non Conveniens
Grounds, Dkt. No. 36-3 ¶¶ 4-5.
In contrast, Defendants argue Croatia’s judicial system has significantly improved since
Croatia became a member of the EU in 2013 and various recent changes to Croatian law
significantly undercut Professor Uzelac’s representations.
See Affidavit of Marko Baretić
(“Baretić Aff.”), Dkt. No. 38-1 ¶¶ 5-36; Joint Declaration of Danijela Simeunović and Rakto Žurić
(“Joint Decl.”), Dkt. No. 38-2 ¶¶ 6-24.
A proposed alternative forum is appropriate when: (1) the defendant is amenable to process
in that jurisdiction; and (2) the lawsuit’s subject matter is cognizable in the alternative forum and
provides the plaintiff with a redress. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981).
Courts have also held, however, that “[i]n ‘rare circumstances’ where the remedy available in the
other jurisdiction is ‘clearly unsatisfactory,’ the threshold requirement will not be met, and the
court will find dismissal improper.” Windt v. Qwest Commc’ns Int’l, Inc., 544 F. Supp. 2d 409,
418 (D.N.J. 2008). Nonetheless, “the unavailability of a theory of recovery or the possibility of
lesser damages cannot render the alternative forum inadequate.” Id. The amount of evidence
required to demonstrate an adequate alternative forum depends on the facts of the case. Lacey I,
862 F.2d at 44. Here, Defendants satisfy the first prong by consenting to the Croatian courts’
jurisdiction over them. See Defs. Br., Dkt. No. 26-1, at 9.
Defendants have also established NCC’s suit is cognizable in Croatia and that forum would
provide NCC with adequate redress. First, it should be noted that even prior to Croatia’s recent
judicial reforms, other courts had concluded Croatia was a satisfactory forum. E.g., Cortect Corp.
v. Erste Bank Ber Oesterreichischen Sparkassen AG, 535 F. Supp. 2d 403, 410 (S.D.N.Y. 2008);
Radeljak v. Daimlerchrysler Corp., 475 Mich. 598 (2006). Additionally, as set forth in Professor
Baretić’s affidavit and Ms. Simeunović and Mr. Žurić’s joint declaration, the Croatian legal system
has only improved since Croatia joined the European Union. See, e.g., Joint Decl., Dkt. No. 38-2
¶¶ 6-20; Baretić Aff., Dkt. No. 38-1 ¶¶ 8-9, 13, 15-28.
This Court rejects NCC’s argument that it would be left with an unsatisfactory remedy.
Even if NCC is correct that some of its causes of action do not have direct Croatian analogues,
“the unavailability of a theory of recovery or the possibility of lesser damages cannot render the
alternative forum inadequate.” Windt, 544 F. Supp. 2d at 418; Archut v. Ross Univ. Sch. of
Veterinary Med., No. 10-1681, 2013 WL 591375, at *5 (D.N.J. Oct. 13, 2013). Additionally,
while the Third Circuit has held that it was not an abuse of discretion for a district court to conclude
an extreme litigation delay could render an alternative forum unsatisfactory, see Bhatnagar v.
Surrendra Overseas Ltd., 52 F.3d 1220, 1228 (3d Cir. 1995), the possibility of some delay in
Croatia does not leave NCC with a clearly unsatisfactory remedy. 4 Finally, NCC’s claim that it
would be left without a satisfactory remedy because of Croatia’s ownership of OU’s stock is
rejected. See Joint Decl., Dkt. No. 38-2 ¶¶ 21-23; Baretić Aff., Dkt. No. 38-1 ¶¶ 29-37; see also
Communication from the Commission to the European Parliament and the Council, Monitoring
Report on Croatia’s Accession Preparations, attached as Ex. B to Baretić Aff., Dkt. No. 38-1; U.S.
http://www.state.gov/documents/organization/220476.pdf (“The law provides for an independent
judiciary, and the government generally respected judicial independence.”); Blanco v. Banco
Indus. de Venezuela, 997 F.2d 974, 982 (2d Cir. 1993) (“we have repeatedly emphasized that ‘[i]t
is not the business of our courts to assume the responsibility for supervising the integrity of the
judicial system of another sovereign nation.’”) (quoting Chesley v. Union Carbide Corp., 927 F.2d
60, 66 (2d Cir. 1991)); Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 290 (5th Cir.
Based upon the foregoing, this Court concludes Croatia is an adequate alternative forum.
B. Deference to Plaintiff’s Forum Choice
Given the presence of a permissive forum selection clause, it is appropriate to give less
deference to Plaintiff’s forum choice. See Koger, Inc. v. O’Donnell, No. 07-3091, 2007 WL
3232586, at *3 (D.N.J. Oct. 31, 2007) (upholding then-Magistrate Judge Shwartz’s determination
It should be noted that the Bhatnagar Court did not find, de novo, that India was an
inadequate alternative forum. Instead, the court simply found it was not an abuse of discretion
for the district court to reach that conclusion. Bhatnagar, 52 F.3d at 1230. In fact, the Third
Circuit stated, “Furthermore, another district court presented with the same raw evidence might
reach different factual conclusions, and we might be constrained under our lenient standards of
review to affirm in that case, as well.” Id.
that a native plaintiff’s forum choice should be given less deference in the face of a permissive
forum selection clause); see also Princeton Football Partners LLC v. Football Ass’n of Ir., No. 115227, 2012 WL 2995199, at *6 n.6 (D.N.J. July 23, 2012); Monach Envtl., Inc. v. Velocitor
Solutions, No. 11-3041, 2011 WL 4499270, at *3 (D.N.J. Sept. 27, 2011). 5
C. Public & Private Interest Factors
As recently reiterated by the Third Circuit:
Private interests to consider include the ease of access to sources of
proof; ability to compel witness attendance if necessary; means to
view relevant premises and objects; and any other potential obstacle
impeding an otherwise easy, cost-effective, and expeditious trial.
Public interests include administrative difficulties arising from
increasingly overburdened courts; local interests in having the case
tried at home; desire to have the forum match the law that is to
govern the case to avoid conflict of laws problems or difficulty in
the application of foreign law; and avoiding unfairly burdening
citizens in an unrelated forum with jury duty.
Kisano Trade & Invest Ltd. v. Lemster, 737 F.3d 869, 873 (3d Cir. 2013). Even though less
deference is accorded to NCC’s choice of forum due to a permissive forum selection clause,
Defendants “must still prove that the private and public balancing factors outweigh the plaintiff’s
choice of forum, and the Court must find that the balances are more than merely ‘tipped’ in favor
of the defendants.” Koger, 2007 WL 3232586, at *4 (citing Lony v. E.I. Du Pont de Nemours &
Co., 886 F.2d 628, 640 (3d Cir. 1989)).
While these cases were decided prior to Atlantic Marine and involved permissive forum
selection clauses, other courts within this Circuit have suggested that Atlantic Marine supports
the proposition that a permissive forum selection clause’s presence nonetheless undercuts certain
private interest arguments (e.g., the forum would be inconvenient for parties or witnesses. See
AAMCO Transmissions, Inc. v. Romano, --- F. Supp. 2d ----, 2014 WL 4105986, at *9 (E.D. Pa.
Aug. 21, 2014).
1. Private Interest Factors
Defendants argue two private interest factors favor dismissal. First, Defendants aver the
ease of access to sources of proof supports dismissal because OU’s documents are located in
Croatia. See Defs. Br., Dkt. No. 26-1, at 15. As NCC correctly notes, however, the location of
books and records is accorded much less deference in the digital age, when document production
can occur electronically. See Mercedes-Benz USA, LLC v. ATX Group, Inc., 2009 WL 2255727,
at *4 (D.N.J. July 27, 2009); GlaxoSmithKline Consumer Healthcare, L.P. v. Merix Pharma.
Corp., No. 05-898, 2005 WL 1116318, at *8 (D.N.J. May 10, 2005). Additionally, in determining
whether Defendants deprived NCC of earned commissions or other income, the parties will need
to compare NCC’s and OU’s records. Therefore, any inconvenience suffered by OU in producing
its records in New Jersey will be equally felt by NCC when producing its records in Croatia. As
such, this factor does not favor either forum.
Defendants also represent that a number of relevant witnesses are located in Croatia or
Germany and, therefore, are outside the subpoena power of this Court. Defs. Br., Dkt. No. 26-1,
at 14-15. It is true that both parties identify a number of witnesses that are located outside the
subpoena power of this Court and the Court should consider the availability of compulsory process
when balancing the public and private interest factors. See Defendants’ Initial Disclosures,
attached as Ex. A to Certification of Marissa N. Lefland in Support of Defendants’ Motion to
Dismiss the First Amended Complaint on Forum Non Conveniens Grounds (“Lefland Cert.”), Dkt.
No. 26-2; Plaintiff’s Initial Disclosures, attached as Ex. B to Lefland Cert.; see also Havens v.
Maritime Communications/Land Mobile LLC, No. 11-993, 2014 WL 2094035, at *2 (D.N.J. May
20, 2014); Koger, 2007 WL 3232586, at *5. Nevertheless, this factor does not strongly weigh in
favor of dismissal because NCC has identified a number of non-party witnesses with relevant
information located in the United States who are likely outside the Croatian courts’ subpoena
power. Additionally, Defendants have failed to provide sufficient evidence for this Court to
determine if these witnesses would not appear at trial and the materiality of their testimony. See
Delta Air Lines, Inv. v. Chimet, S.p.A., 619 F.3d 288, 299 (3d Cir. 2010). Compare Plum Tree,
Inc. v. Stockment, 488 F.2d 754, 757 n.2 (3d Cir. 1973), Monarch, 2011 WL 4499270, at *4,
Dilmore v. Alion Science & Tech. Corp., No. 11-72, 2011 WL 1576021, at *7 (W.D. Pa. Apr. 21,
2011), Security Police & Fire Prof’ls of Am. Retirement Fund v. Pfizer, Inc., No. 10-3105, 2011
WL 5080803, at *7 (D.N.J. Oct. 25, 2011), and Pittsburgh Logistics, 2010 WL 170403 at *5, with
See Kultur Int’l Films Ltd. v. Covent Garden Pioneer, FSP, Ltd., 860 F. Supp. 1055, 1066 (D.N.J.
1994) (granting motion to dismiss when circumstances suggested key witness would refuse to
Fourth, despite the parties’ vigorous disagreement over the cost non-party witnesses
would incur in traveling to Croatia or New Jersey, it is clear that some witnesses would incur
significant costs regardless of which forum adjudicates the instant dispute.
The remaining private interest factors are neutral to both fora.
2. Public Interest Factors
Defendants’ sole public interest argument is that this Court would need to apply Croatian
law in this case. See Defs. Br., Dkt. No. 26-1, at 17; see also Agency Agreement, attached as Ex.
A to First Am. Compl., Dkt. No. 11-1, art. 24. This factor favors dismissal. See Bhatnagar, 52
F.3d at 1226 n.5; Lacey I, 862 F.2d at 48; Kultur, 860 F. Supp. at 1069. The Supreme Court and
Third Circuit have held, however, that the need to apply foreign law alone is insufficient to warrant
dismissal. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 260 n.29 (1981); Hoffman v. Goberman,
420 F.2d 423, 427 (3d Cir. 1970). 6
The remaining public interest factors strongly disfavor dismissal. First, while this Court
has concluded Croatia is an acceptable alternative forum, it appears that court congestion is much
greater in the Croatian commercial courts. Second, New Jersey has a strong interest in adjudicating
this dispute because NCC is a New Jersey corporation, the Agency Agreement was executed in
New Jersey, 7 NCC performed its obligations in New Jersey, and NCC’s injuries were felt in this
state. See Declaration of Davor Gjivoje, Jr. in Opposition to Defendants’ Motion to Dismiss on
Forum Non Conveniens Grounds, Dkt. No. 36-1 ¶¶ 3-6; Kultur, 860 F. Supp. at 1068 (recognizing
New Jersey’s “interest in providing a forum for its residents who fall victim to the wrongful
activities of nonresident corporations entering the state”); C.I.N. Constr., Inc. v. Hunt Constr. Grp.,
No. 08-5810, 2009 U.S. Dist. LEXIS 85519, at *24, *27 (D.N.J. Aug. 20, 2009) (finding that the
center of gravity of the parties’ dispute over payments allegedly withheld from a company
performing its obligations in New Jersey was New Jersey and stating “New Jersey has an interest
in trying a case involving allegations that one of its citizens was the victim of a breach of contract”)
(quotation and citation omitted); see also L.G. Elec., Inc. v. First Int’l Computer, Inc., 138 F. Supp.
2d 574, 592 (D.N.J. 2001); McCraw v. GlaxoSmithKline, Civ. No. 12-2119, 2014 WL 211343, at
NCC argues Defendants should be precluded from relying on the Court’s need to apply
foreign law to support their motion. See Pl. Opp’n Br., Dkt. No. 37, at 34-35. This issue is not
reached as, even accepting Defendants’ argument, this Court concludes Defendants have failed
to satisfy their burden.
While Defendants have represented that OU executed the Agency Agreement in
Croatia, NCC has provided the Court with photographs proving both parties executed the
Agency Agreement in New Jersey. See Declaration of Davor Gjivoje, Jr. in Support of
Plaintiff’s Motion to Strike, or in the Alternative Request for Permission to File a Sur-Reply,
Dkt. No. 39-2 ¶¶ 5-7.
*6 (E.D. Pa. Jan. 17, 2014). Additionally, while NCC represents that the Foreign Sovereign
Immunities Act mandates a bench trial, even if the case would be decided by a jury, a New Jersey
jury would have an interest in adjudicating this matter.
3. Balancing the Private and Public Interests
As set forth above, Defendants have not established that the private and public interest
factors, even when affording NCC’s forum selection less deference, outweigh NCC’s choice of
this forum such that dismissal is warranted.
As Defendants have failed to satisfy their burden, Defendants’ motion to dismiss on forum
non conveniens grounds [Dkt. No. 26] is DENIED. An appropriate form of order accompanies
Dated: September 23, 2014
s/ Susan D. Wigenton_______
United States District Judge
Magistrate Judge Arleo
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?