ARCHUT v. ROSS UNIVERSITY SCHOOL OF VETERINARY MEDICINE et al
Filing
56
MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 10/30/2013. (jjc)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KATHERINE ARCHUT,
Plaintiff,
CIVIL ACTION NO. 10-1681 (MLC)
MEMORANDUM OPINION
v.
ROSS UNIVERSITY SCHOOL OF
VETERINARY MEDICINE, et al.,
Defendants.
COOPER, District Judge
Plaintiff, Katherine Archut (“Archut”), brought this action
against Defendants, Ross University School of Veterinary Medicine
(“Ross”) and DeVry, Inc. (“DeVry”) (collectively, the
“defendants”), alleging common law breach of contract.
entry no. 1, Compl. at ¶¶ 68-74.)
(See dkt.
Archut also claimed violations
of federal and state anti-discrimination laws, on which the
defendants have been granted summary judgment in their favor.
(See
dkt. entry no. 41, 11-19-12 Mem. Op.; dkt. entry no. 42, 11-19-12
Order & J.)
The defendants now move, inter alia, to dismiss the
remaining breach of contract claim on the basis of forum non
conveniens.
(See dkt. entry no. 47-1, Defs. Br.)
The Court will resolve the Motion on the papers and without
oral argument pursuant to Local Civil Rule 78.1(b).
The Court, for
the reasons that follow, will grant the Motion insofar as it seeks
dismissal of the remaining claim pursuant to the doctrine of forum
non conveniens.
I.
FACTUAL RECORD
The Court has previously described the parties, events giving
rise to the claims, and procedural posture of this action in the
Court’s November 19, 2012 Memorandum Opinion.
Op. at 2-9.)
(See 11-19-12 Mem.
The Court assumes that the parties are familiar with
the contents of the Court’s November 19, 2012 Memorandum Opinion
and will not repeat them here.
(See id.)
Archut requests that the Court “reconsider its earlier summary
of the facts in light of the entire record, giving due weight to
certain evidence that [Archut argues] was entitled to more weight
than was given in the Court’s earlier discussion.”
(Dkt. entry no.
53, Archut Br. in Opp’n to Summ. J. (“Archut Opp’n Br.”) at 1-2.)1
The defendants argue that the Court should reject Archut’s
request for reconsideration of the Court’s earlier, “well-reasoned”
factual findings.
(Dkt. entry no. 54, Defs. Reply Br. in Further
Supp. of Summ. J. (“Defs. Reply Br.”) at 2-5.)
The defendants
oppose Archut’s assertion that the Court failed to specifically
cite additional facts in the record, or otherwise did not recount
1
While not styled as a motion for reconsideration (as such
a motion would be untimely), in essence, Archut asks the Court
to reconsider the import of certain factual findings from the
November 19, 2012 Memorandum Opinion, as well as re-examine
documents to reach a different conclusion in one instance. (See
Archut Opp’n Br. at 1-4.)
2
the facts as Archut believes the record supports, with respect to
the timing of when key documentation was provided to Ross.
id.)
(See
The Court noted in its November 19, 2012 Memorandum Opinion
that
[c]itations to Defendants’ Statement of Undisputed
Material Facts only include those facts that Plaintiff
has failed to dispute, unless otherwise noted. See
L.Civ.R. 56.1(a) (“any material fact not disputed shall
be deemed undisputed for purposes of the summary judgment
motion”); Smith v. Addy, 343 Fed.Appx. 806, 808 (3d Cir.
2009). We thus, after ensuring that the parties’
respective statements of fact accurately summarize the
evidence of record, provide citation to their statements.
(11-19-12 Mem. Op. at 2 n.2.)
The Court declines to engage in a reconsideration of the
factual findings recounted in the November 19, 2012 Memorandum
Opinion.
The Local Civil Rules provide that requests for
reconsideration “shall be served and filed within 14 days after the
entry of the order or judgment on the original motion by the
Judge.”
See L.Civ.R. 7.1(i).
Here, Archut would have had to file
such a request “within fourteen days after” November 19, 2012.
L.Civ.R. 7.1(i).
As Archut did not request reconsideration until
May 6, 2013, the Court will not reconsider its prior summary of the
factual record from the November 19, 2012 Memorandum Opinion.
(See
Archut Opp’n Br. at 37 (noting filing date of May 6, 2013).)
The parties chose to resubmit or incorporate the same
statement and counter-statement of facts that the Court addressed
3
in the November 19, 2012 Memorandum Opinion.
(See dkt. entry no.
47-2, Defs. Statement of Undisputed Facts (“Defs. Statement”); dkt.
entry no. 47-3, Defs. Supp. Statement of Undisputed Facts (“Defs.
Supp. Statement”) at 1 (“This Supplemental Local Rule 56.1
Statement expressly incorporates Paragraphs 1-128 of Defendants’
original Local Rule 56.1 Statement of Undisputed Facts, as if each
and every one is cited herein.”); Archut Opp’n Br. at 1 (“[W]e
incorporate here the Statement of Facts in our brief in opposition
to defendants’ earlier summary judgment motion, Docket Entry No.
36, pp. 1-13, as well as the factual material cited in that brief
and relied upon at that time.”).)
As stated supra, the Court
incorporates the facts delineated in the November 19, 2012
Memorandum Opinion and adopts such undisputed facts from the record
as are necessary to resolve this Motion.
The defendants also submitted a Supplemental Statement of
Undisputed Facts, which provides additional background facts
directed toward the breach of contract claim.
(See Defs. Supp.
Statement; see also Defs. Br. at 4 n.1 (“Ross filed a Supplemental
Rule 56.1 Statement . . . along with this motion.
This motion
incorporates Ross’ original Rule 56.1 Statement, then adds a few
additional paragraphs directed towards the contract claim.”).)
Archut submitted a Statement in Response to the Defendants’
Supplemental Statement of Undisputed Material Facts with her
opposition papers that responded to the Defendants’ Supplemental
4
Statement.
(See dkt. entry no. 53-1, Statement in Response to
Defs. Supp. Statement of Undisputed Material Facts (“Archut Resp.
to Defs. Supp. Statement”).)
Accordingly, those supplemental
facts, which are supported by evidence of record and are
undisputed, will be summarized here.
Ross is accredited by the St. Kitts and Nevis Accreditation
Board, which was established by the Government of St. Kitts to set
criteria and standards for all aspects of tertiary education in St.
Kitts.
(See Defs. Supp. Statement at ¶ 132.)
Ross makes a
substantial contribution to the economy of St. Kitts.
130.)
law.
(Id. at ¶
The legal system in St. Kitts is based on British common
(Id. at ¶ 133.)
The final court of appeal is the Judicial
Committee of the Privy Council in the United Kingdom.
(Id.)
The
Ross Student Handbook expressly “remind[s] [students] that they are
also subject to the same local laws as are other citizens and
residents of St. Kitts.
these laws.”
II.
The University is not a sanctuary from
(Id. at ¶ 138.)
ANALYSIS
A.
The Timeliness of the Motion Insofar as it Seeks
Dismissal
Prior to considering the substance of the Motion, this Court
will address Archut’s concerns regarding timeliness.
Archut argues
that “it is simply too late for defendants to argue forum non
conveniens, and their position should be rejected on that basis
5
alone.”
(Archut Opp’n Br. at 18.)
Archut’s timeliness argument is
derived from In re Air Crash, a Fifth Circuit Court of Appeals
case.
The Fifth Circuit there stated:
[A] defendant must assert a motion to dismiss
for forum non conveniens within a reasonable time after
the facts or circumstances which serve as the basis for
the motion have developed and become known or reasonably
knowable to the defendant. While untimeliness will not
effect a waiver, it should weigh heavily against the
granting of the motion because a defendant's
dilatoriness promotes and allows the very incurrence of
costs and inconvenience the doctrine is meant to
relieve.
821 F.2d 1147, 1165 (5th Cir. 1987) (citations omitted), vacated on
other grounds sub nom., Pan Am. World Airways, Inc. v. Lopez, 490
U.S. 1032 (1989).2
The defendants argue that a district court is
not precluded from reconsidering the forum non conveniens issue on
an expanded record later in the litigation.
(See Defs. Br. at 18.)
Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 608 (3d Cir.
1991) (“Lony II”).
They insist that dismissal pursuant to forum
non conveniens “only became appropriate upon an expanded record –
specifically, the summary judgment decision that dismissed the
federal and New Jersey statutory claims.”
(Defs. Reply Br. at 7.)
The Court finds that the Motion, insofar as it seeks dismissal
pursuant to forum non conveniens, is timely.
Archut brought this
action in federal court premised on the Court’s federal question
2
The Third Circuit Court of Appeals discussed, but
distinguished, In re Air Crash in Lacey v. Cessna Aircraft Co.,
932 F.2d 170, 177 (3d Cir. 1991) (“Lacey II”).
6
jurisdiction over claims brought under the Rehabilitation Act
(“RHA”), 29 U.S.C. § 794, and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12181, and supplemental jurisdiction under 28
U.S.C. § 1367 over the remaining state law claims.
¶ 1; 11-19-12 Mem. Op. at 32.)
(See Compl. at
The Court’s November 19, 2012 Order
and Judgment granted the defendants’ Motion for Summary Judgment,
in part, and granted judgment in the defendants’ favor on Archut’s
claims brought under the RHA, the ADA, and the New Jersey Law
Against Discrimination.
(See 11-19-12 Order & J.)
The Court,
having disposed of all claims over which it had original
jurisdiction, instructed the parties to address the jurisdictional
issue under 28 U.S.C. § 1332.
(See 11-19-12 Mem. Op. at 33.)
The
Court further asserted that, “[s]hould the parties satisfy the
Court that jurisdiction under Section 1332 exists, . . . . the
breach of contract claim may yet be subject to dismissal under the
doctrine of forum non conveniens.”
(See id. at 33 n.9.)
The Court finds no dilatory tactics on the part of the
defendants and finds that it became appropriate to consider the
forum non conveniens issue once the Court granted judgment in the
defendants’ favor on the federal and New Jersey statutory claims.
The Court further finds that the Motion, insofar as it seeks
dismissal pursuant to forum non conveniens, was asserted “within a
reasonable time after the facts or circumstances which serve as the
7
basis for the motion have developed,” and is thus timely.
See In
re Air Crash, 821 F.2d at 1165.3
B.
The Doctrine of Forum Non Conveniens
The doctrine of forum non conveniens permits the Court to
dismiss a complaint “when an alternative forum has jurisdiction to
hear the case, and when trial in the chosen forum would establish .
. . oppressiveness and vexation to a defendant . . . out of all
proportion to plaintiff’s convenience.”
Reyno, 454 U.S. 235, 241 (1981).
See Piper Aircraft Co. v.
The Court, when deciding whether
to dismiss a complaint based on forum non conveniens, must address
four issues: (1) the availability of an adequate 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.
See Lony v. E.I. Du Pont de Nemours &
Co., 866 F.2d 628, 633 (3d Cir. 1989) (“Lony I”).
To apply these factors, the Court will employ the analysis set
forth in Windt v. Qwest Communications International, Inc.:
Applying these precepts to a particular case, when
considering a motion to dismiss on forum non
conveniens grounds, a district court must first
determine whether an adequate alternative forum can
entertain the case. If such a forum exists, the
district court must then determine the appropriate
amount of deference to be given the plaintiff’s choice
of forum. Once the district court has determined the
3
The Motion was filed on March 11, 2013. (See dkt. entry
no. 47, Defs. Mot. To Dismiss (noting Motion was filed on March
11, 2013).)
8
amount of deference due the plaintiff’s choice of forum,
the district court must balance the relevant public and
private interest factors. If the balance of these
factors indicates that trial in the chosen forum would
result in oppression or vexation to the defendant out of
all proportion to the plaintiff’s convenience, the
district court may, in its discretion, dismiss the case
on forum non conveniens grounds.
529 F.3d 183, 189-90 (3d Cir. 2008).
“The district court is accorded substantial flexibility in
evaluating a forum non conveniens motion, and each case turns on
its facts.”
Id. at 188 (quotation and citation omitted).
“[T]he forum non conveniens determination is committed to the sound
discretion of the trial court.”
citation omitted).
Id. at 188-89 (quotation and
The Court, when resolving a motion to dismiss
for forum non conveniens, “must do no more than delineate the
likely contours of the case by ascertaining, among other things,
the nature of the plaintiff's action, the existence of any
potential defenses, and the essential sources of proof.”
932 F.2d at 181.
Lacey II,
Where the district court “has considered all
relevant public and private interest factors, and where its
balancing of these factors is reasonable, its decision deserves
substantial deference.”
1.
Piper Aircraft Co., 454 U.S. at 257.
The Availability of an Adequate Alternative Forum
The Court, as a threshold matter, must determine whether an
adequate alternative forum exists.
Kultur Int’l Films Ltd. v.
Covent Garden Pioneer, FSP, Ltd., 860 F.Supp. 1055, 1064 (D.N.J.
9
1994).
Two conditions must be satisfied to meet this adequacy
requirement: (1) the defendant must be amenable to process in the
alternative forum, and (2) the subject matter of the lawsuit must
be cognizable in the alternative forum in order to provide the
plaintiff appropriate redress.
Id.
Inadequacy of the alternative
forum is rarely a barrier to dismissal based on forum non
conveniens.
Tech. Dev. Co. v. Onischenko, 174 Fed.Appx. 117, 120
(3d Cir 2006).
Dismissal is not foreclosed on forum non conveniens grounds
merely because the “evidentiary record regarding the availability
of an adequate alternative forum is sparse or nonexistent.”
Miller
v. Bos. Scientific Corp., 380 F.Supp.2d 443, 449 (D.N.J. 2005).
A
party seeking dismissal need not provide record evidence that it is
amenable to process in the foreign forum, because a court can
always condition dismissal on the movant’s consent to
jurisdiction.
See id.
If there is no dispute among the parties
regarding the adequacy of the foreign forum, the defendant is under
no obligation to provide record evidence that the foreign forum
would provide plaintiff with an adequate remedy.
See id. at 450.
If the parties present a legitimate dispute concerning the adequacy
of the alternative forum, however, the defendant must generally
provide record evidence indicating that the plaintiff could obtain
proper redress in the alternative forum.
10
See id. at 449.
a.
The Defendants are Amenable to Process in
St. Kitts
The defendants are amenable to process in St. Kitts.
Ross is
a corporation organized under the laws of the Federation of St.
Kitts and Nevis and is subject to process in St. Kitts.
Statement at ¶ 1; Defs. Br. at 15.)
(See Defs.
Although DeVry may not be
amenable to process in St. Kitts from a procedural standpoint,
DeVry expressly agrees to accept process for any action Archut may
bring in St. Kitts.
(See Defs. Br. at 15 n.3.)
The defendants
also agree to waive any potential statute of limitations defense on
the condition that Archut commences an action in St. Kitts within a
reasonable time after the Court dismisses the remaining claim.
(See id. at 15.)
b.
Archut’s Claims Appear Cognizable in St. Kitts
Archut’s common law of breach of contract claim appears
cognizable under St. Kitts law.
Archut does not expressly dispute
that St. Kitts can provide her with the appropriate redress.
(See
generally Archut Opp’n Br. at 19-20; Defs. Reply Br. at 1.)
Archut
premises her argument only on the fact that the defendants failed
to meet their burden of establishing the adequacy of the proposed
alternate forum.
Unless there is a dispute among the parties
regarding the adequacy of the foreign forum, however, the
defendants are under no obligation to provide record evidence that
11
St. Kitts would provide Archut with an adequate remedy.
See
Miller, 380 F.Supp.2d at 450.
The defendants nonetheless provide record evidence that
Archut’s claims are cognizable under St. Kitts law.
at 15.)
(See Defs. Br.
The defendants aver that St. Kitts bases its legal system
on the British common law system, and that St. Kitts’s final court
of appeal is the Judicial Committee of the Privy Council in the
United Kingdom.
(See Defs. Supp. Statement at ¶ 133; dkt. entry
no. 47-4, Decl. of Howard Wexler, Ex. 5, Investment Climate
Statement at 2.)
They stress St. Kitts thus “recognizes claims for
breach of contract, and provides detailed mechanisms for enforcing
contracts in its courts.”
(See Defs. Supp. Statement at ¶ 134;
Decl. of Howard Wexler, Ex. 6, Enforcing Contracts Statement at 1
(containing information collected by World Bank on efficiency of
contract enforcement in St. Kitts, particularly in “the evolution
of a sale of goods dispute”).)
The defendants further aver that,
under certain circumstances, St. Kitts recognizes contract claims
brought by students against universities.
(See Defs. Br. at 15.)
See e.g., Panchal v. Med. Univ. of the Ams., Ltd., Claim No. NEVHCV
2003/0096 (E. Caribbean Sup. Ct., St. Kitts & Nevis, Nevis Cir.
Mar. 28, 2011) (finding that contractual relationship existed
between plaintiff-student and university she was enrolled in, that
Honor Code formed part of that contract, and that university was
liable for breach of contract).
12
Archut even acknowledges that the defendants offered such
evidence.
(See Archut Opp’n Br. at 19 (stating that defendants, to
support their position, offer “several decisions from Caribbean and
British courts generally recognizing a cause of action for breach
of contract, and some non-authoritative references to legal
remedies for breach of contract in St. Kitts”).)
Archut recounts
the evidence proffered by the defendants not to dispute whether St.
Kitts is an adequate alternative forum, but instead to demonstrate
that the evidence is at odds with one of the defendants’ summary
judgment arguments contained later in the same brief.
(See id.)
In so arguing, Archut states:
Defendants’ position is also somewhat at odds with
itself. On one hand, they devote much discussion in
their brief to why St. Kitts would not afford plaintiff
any realistic prospect of securing relief there. See
Defendants’ Brief at 24-25, under the subject heading
“St. Kitts Law Does Not Recognize Archut’s Contract
Claim”. Yet one of the decisions they cite appears to
recognize a contract-type cause of action by a medical
student who was terminated for disciplinary reasons
without fundamental procedural fairness. Panchal v.
Med. Univ. of the Americas, Ltd., Claim No. NEVHCV
2003/0096 (Eastern Caribbean Sup. Ct., St. Kitts &
Nevis, Nevis Cir. Mar. 28, 2011).
(Id.)
Archut’s argument is misplaced.
Although the subject heading
in the defendants’ brief that Archut refers to -- “St. Kitts Law
Does Not Recognize Archut’s Contract Claim” -- ostensibly points to
the theory that Archut’s claim may not be cognizable in St. Kitts,
13
a close reading of the defendants’ argument under that subject
heading warrants a different conclusion.4
The defendants do not
argue that such breach of contract claims are recognized by the
United States but not by St. Kitts, rather, the defendants argue
that Archut’s breach of contract claim would eventually fail in
either jurisdiction simply because no enforceable contract existed.
(See Defs. Br. at 24-25 (asserting that because Ross Student
Handbook confers Ross’s Dean with final authority for interpreting
and applying Ross policies and procedures, the Student Handbook
cannot contractually require Ross to do anything); see also Defs.
Reply Br. at 7, 9-10 (responding to Archut’s claim -- that
defendants admitted St. Kitts would not recognize her breach of
contract claim -- by clarifying that their argument actually is
that neither St. Kitts nor New Jersey would recognize Archut’s
claim because no enforceable contract existed).)
The defendants
need not demonstrate that Archut could prevail on her breach of
contract claim in the alternative forum in order to meet their
burden; they must only demonstrate that the claim meets the basic
4
The Court notes that the section titled “St. Kitts Law
Does Not Recognize Archut’s Contract Claim” is part of the
defendants’ argument for summary judgment and not part of their
argument for dismissal pursuant to forum non conveniens. (See
Defs. Br. at 24-25.)
14
criteria of viability for being tried in St. Kitts.
They have so
demonstrated.5
The defendants have met the threshold requirement of showing
that an adequate alternative forum exists, namely St. Kitts.
defendants are amenable to process in St. Kitts.
The
St. Kitts courts
appear to provide appropriate redress for Archut’s claims.
Moreover, Archut does not dispute whether St. Kitts is an adequate
alternative forum; instead, Archut merely postulates that the
defendants did not meet their burden on this factor.
This is
sufficient for this Court to find that St. Kitts would be an
adequate alternative forum.
2.
Archut’s Choice of Forum is Due Some Deference
The adequacy of the alternative forum having been determined,
the next question is the amount of deference to be given to
Archut’s choice of forum.
Ordinarily, a strong presumption of
convenience exists in favor of a plaintiff’s chosen forum, and this
5
The Court notes that a remedy is not inadequate merely
because it is less favorable to the plaintiff than the remedy
available in the plaintiff’s chosen forum. See Piper Aircraft Co.,
454 U.S. at 250 (“Except for the court below, every Federal Court
of Appeals that has considered this question after Gilbert has held
that dismissal on grounds of forum non conveniens may be granted
even though the law applicable in the alternative forum is less
favorable to the plaintiff's chance of recovery.”); see also
Fitzgerald v. Texaco, Inc., 521 F.2d 448, 453 (2d Cir. 1975)
(holding that district court “has discretion to dismiss an action
under the doctrine of forum non conveniens, . . . even though the
law applicable in the alternative forum may be less favorable to
the plaintiff's chance of recovery”).
15
presumption may be overcome only when the balance of the public and
private interests “clearly” favors an alternate forum.
Aircraft Co., 454 U.S. at 255.
Piper
When the plaintiff is foreign,
however, this assumption is much less reasonable.
Id. at 256.
Because the central purpose of any forum non conveniens inquiry is
to ensure that the trial is convenient, a foreign plaintiff’s
choice deserves less deference.
Id.6
An American citizen’s forum choice, however, should not be
given dispositive weight.
See id. at 255 n.23.
Citizens or
residents deserve somewhat more deference than foreign plaintiffs,
but dismissal should not be automatically barred when a plaintiff
has brought an action in the plaintiff’s home forum.
Id.
As
always, if the balance of conveniences suggests that trial in the
chosen forum would be unnecessarily burdensome for the defendant or
the court, dismissal is proper.
Id.
6
In particular, if the
The defendants argue that Archut is a foreign plaintiff for
forum non conveniens purposes because she is a North Carolina
resident. (Defs. Br. at 16.) The defendants are incorrect. A
“foreign” plaintiff for forum non conveniens purposes refers to a
citizen of a foreign country, not a resident of another state
within the United States. See Piper Aircraft Co., 454 U.S. at 255
n.23 (distinguishing between “foreign” and “American” plaintiffs in
explaining why greater deference is due to forum choice of
“citizens” and “residents”); see also LaSala v. UBS, AG, 510
F.Supp.2d 213, 223 (S.D.N.Y. 2007) (“In cases with foreign
defendants, the home forum for the plaintiff is any federal
district in the United States, not the particular district in which
the plaintiff lives.”).
16
operative facts giving rise to the complaint occurred outside of
the chosen forum, then deference owed to a plaintiff’s choice of
forum is reduced.
Lynch v. Hilton Worldwide, Inc., No. 11-1362,
2011 WL 5240730, at *3 (D.N.J. Oct. 31, 2011) (dismissing complaint
filed by New Jersey plaintiffs in their home forum where pertinent
facts giving rise to action had little connection to New Jersey).
In Lynch, the district court determined how much deference to give
to the New Jersey plaintiffs’ choice to bring an action in their
home forum when the facts giving rise to the complaint occurred in
London.
See id.
The district court stated:
In this case, the Plaintiffs are New Jersey residents
and have chosen to sue in their home forum. This choice
is generally accorded great deference by the Court.
However, New Jersey has little connection with the
pertinent facts giving rise to this law suit. The
Plaintiffs’ case centers on a slip and fall which
happened in a London hotel, the allegedly unsafe
condition of a London bathtub and the alleged negligence
of the London hotel employees. All of the facts giving
rise to the Plaintiffs’ complaint occurred in London.
Therefore, while the Plaintiffs have sued in their home
forum and this choice is given deference by the Court,
this choice is not dispositive and the Court’s deference
is somewhat diminished since the operative facts giving
rise to the action occurred outside of New Jersey.
Id.
The Court acknowledges that Archut’s choice of forum is
entitled to some deference.
Archut is a North Carolina resident
and chose to file the Complaint in the United States.
17
Archut is
not a foreign plaintiff for forum non conveniens purposes, so a
presumption of convenience initially exists in favor of her chosen
forum.
See Piper Aircraft Co., 454 U.S. at 255 n.23.
This Court,
however, declines to award full deference to Archut’s choice of
forum, as nearly all of the facts giving rise to the Complaint
occurred in St. Kitts.
(See 11-19-12 Mem. Op. at 2-9.)
The Court
concludes that Archut’s choice of forum is entitled to a somewhat
diminished level of deference.
See Lynch, 2011 WL 5240730, at *3
(holding that deference to plaintiffs’ choice to bring action in
home forum is “somewhat diminished since the operative facts giving
rise to the action occurred outside of New Jersey”).
3.
The Balance of Private and Public Interest Factors
Although Archut’s choice of forum is accorded some deference,
the defendants must still demonstrate that dismissal pursuant to
forum non conveniens is warranted.
To determine whether dismissal
is warranted, the Court will consider the oppression and vexation
prong of the forum non conveniens inquiry.
Windt, 529 F.3d at 192.
“When an alternative forum has jurisdiction to hear the case, and
when trial in the plaintiff’s chosen forum would establish
oppressiveness and vexation to a defendant . . . out of all
proportion to plaintiff’s convenience, . . . the district court
may, in the exercise of its sound discretion, dismiss the case.”
Id.
The Court, in exercising its discretion, “must balance the
relevant public and private interest factors and determine whether
18
the balance of these factors favors dismissal of the case.”
Id.
The task of balancing the private and public interest factors is
essentially qualitative, not quantitative.
See Lacey II, 932 F.2d
at 180-82 (concluding that depending on case, some factors are
“more equal” than others).
A defendant must show that the balance
of the public and private factors tips decidedly in favor of trial
in the foreign forum.
Id. at 180.
The Court has considered the
parties’ arguments and has determined that, on balance, the
defendants have established oppressiveness and vexation to them out
of all proportion to Archut’s convenience.
a.
The Balance of Public Interests
The Court first examines the relevant public interest factors.
The relevant public interest factors include: (1) the
administrative difficulties flowing from court congestion; (2) the
local interest in having localized controversies decided at home;
(3) the avoidance of unnecessary problems in conflict of laws, or
in the application of foreign law; and (4) the unfairness of
burdening citizens in an unrelated forum with jury duty.
529 F.3d at 189.
Windt,
In evaluating the public interest factors, the
district court must consider the locus of the alleged culpable
conduct, often a disputed issue, and the connection of that conduct
to the plaintiff’s chosen forum.
Lacey v. Cessna Aircraft Co., 862
F.2d 38, 48 (3d Cir. 1988) (“Lacey I”).
19
i.
The Administrative Difficulties Flowing
from Court Congestion
Litigating this case in the chosen forum will increase court
congestion and present unnecessary administrative difficulties due
to the fact that the operative facts giving rise to the action
occurred outside of New Jersey.
Neither Archut nor the defendants,
however, proffer any arguments regarding this factor.
There is
thus no basis on the record to consider comparative court
congestion as a factor weighing in favor of either party.
See Lony
II, 935 F.2d at 613.
ii.
The Local Interest In Having Localized
Controversies Decided at Home
Archut argues that New Jersey and the United States have a far
more significant interest in this case than St. Kitts.
Opp’n Br. at 6-16.)
(See Archut
Archut emphasizes that the public interests
favor a United States forum because Ross’s student body consists
largely of United States students who are recruited in the United
States, submit applications in the United States, are interviewed
in the United States, finance their educations with federal student
loan funds, and return to the United States after graduation.
id. at 20.)
(See
Archut disputes the defendants’ contention that New
Jersey has no connection to her purported contractual relationship
with Ross.
(See id. at 13.)
Archut specifies that it was Ross’s
New Jersey office where she submitted her application materials,
20
was interviewed, and first disclosed her learning disability and
West Virginia University accommodations.
(See id. at 13-14.)
The defendants argue that “St. Kitts has a strong ‘local
interest’ in resolving an alleged contractual dispute between a St.
Kitts university and a student residing on St. Kitts, arising from
testing accommodations requested on St. Kitts.”
17.)
(Defs. Br. at 16-
In arguing that “St. Kitts possesses a vastly more
significant relationship with the contract than New Jersey,” the
defendants note that the purported contract was to be performed in
St. Kitts, Ross’s policies and procedures concerned its veterinary
school, which is located in St. Kitts, Ross is a St. Kitts entity,
and Archut resided in St. Kitts while she studied at Ross.
id. at 10-11.)
(See
The defendants therefore reason that, while the
United States has no national interest in asserting authority over
a foreign contract claim, St. Kitts has “an extremely strong
interest in adjudicating contractual disputes between a major St.
Kitts university and a student studying on St. Kitts.”
(See id. at
8.)
The defendants further argue that St. Kitts has a substantial
need and interest in having its law apply to Ross’s policies and
procedures.
(See id. at 11-12.)
They state:
Ross is accredited by the St. Kitts and Nevis
Accreditation Board to offer a doctor of veterinary
medicine program. The Accreditation Board was
established by the Government of St. Kitts and sets
criteria and standards for all aspects of tertiary
21
education on St. Kitts, including but not limited to
such issues as educational resources. To hold Ross to a
standard set pursuant to the contract law of New Jersey,
or any other U.S. state, would be to interfere with St.
Kitts’ legitimate need and interest in governing,
through its Accreditation Board, all aspects of tertiary
education provided in St. Kitts.
Not only is Ross located in St. Kitts, and accredited by
its Accreditation Board, it also makes a substantial
contribution to the economy. . . . Conversely, New
Jersey has neither a need nor an interest in
adjudicating how a St. Kitts university operates, or how
it interacts with non-New Jersey students.
(Id. (citations omitted).)
The defendants also underscore the fact
that “a St. Kitts court would be intimately more familiar with the
local conditions that made it prohibitively expensive for Ross to
offer a live reader.”
(Defs. Reply Br. at 8.)
The Court is persuaded by the defendants’ arguments.
The
local interest in having localized controversies decided at home
“(1) should be read jointly with that of avoiding burdening jurors
with cases that have no impact on their community, and (2) focuses
on the nature of the dispute and the effect that the outcome might
have on the community of the local jurors.”
Windt v. Qwest
Commc’ns Int’l, Inc., 544 F.Supp.2d 409, 423 (D.N.J. 2008), aff’d,
529 F.3d 183 (3d Cir. 2008).
This case concerns the alleged breach
of a contractual relationship between a St. Kitts university and an
enrolled student residing in St. Kitts.
The student, Archut, is a
Virginia native who received a college education in West Virginia,
resided in St. Kitts while enrolled at Ross, and now resides in
22
North Carolina.
(See 11-19-12 Mem. Op. at 3.)
The university,
Ross, is a school that operates in St. Kitts and is a corporation
organized under the laws of the Federation of St. Kitts and Nevis.
(See id.)
That Archut mailed her application to an office in New Jersey
and interviewed at that office does not transform the case into a
localized controversy.
Archut argues that Ross’s New Jersey office
was substantially involved in Ross’s failure to provide her with
the necessary accommodations.
Yet, Archut’s disclosure of her
learning disability and West Virginia University accommodations to
Ross’s New Jersey office did not include any information about the
need for a live reader.
(See 11-19-12 Mem. Op. at 5-6.)
Archut
claims that, but for the misplacement of her disability
documentation from West Virginia University by Bill Bingham (an
employee of Ross’s New Jersey office) in December 2007, the
discrepancy between that documentation and Archut’s “clearly
explained need for a live reader would have been apparent at her
initial meeting with Elpida Artemiou (a Ross student counselor
responsible for handling accommodation requests) during the first
week of class in early January 2008.”
(Archut Opp’n Br. at 14.)
The Court does not agree with Archut’s assertion.
Whether
Bill Bingham misplaced the disability documentation has little
relevance.
The misplaced disability documentation “did not mention
a live reader and stated that Archut would be responsible for
23
sending the most recent documentation of her impairments and need
for accommodations.”
(See 11-19-12 Mem. Op. at 5-6.)
There is no
reason to assume Archut would have acted on the purported omission,
as Archut had several subsequent opportunities to provide the
requisite written documentation regarding her disability and the
nature of the accommodation sought and failed to do so until well
into her first semester at Ross.
(See, e.g., 11-19-12 Mem. Op. at
6 (stating that Archut filled out Personal Data Form during Ross
student orientation and made no request for live reader in
disabilities section of form); Defs. Statement at 57 (“Artemiou met
with Archut sometime in early January.
During this meeting, Archut
requested additional time on examinations and, when possible, a
room without distraction.
Although Archut mentioned receiving a
reader accommodation at West Virginia University, she did not
request a reader during this meeting.”).)
When Archut finally did provide written documentation to Ross,
the documentation suggested only that she would benefit from a
general audio accommodation; it did not specify the need for a live
reader.
(See 11-19-12 Mem. Op. at 7-8.)
Moreover, Archut provided
this written documentation several months into her first semester
at Ross, long after she would have initially realized Ross was not
providing her with a live reader pursuant to any alleged
documentation sent from West Virginia University to Bill Bingham.
(See id. at 7-8.)
24
As the local interest in having localized controversies
decided at home focuses on the effect that the resolution of the
case would have on the local community, New Jersey has little
interest in the resolution of this case.
at 423.
See Windt, 544 F.Supp.2d
The tangential relationship between the subject matter of
this action and the defendants’ activities within the state of New
Jersey undercuts Archut’s argument that New Jersey and its citizens
have an interest in hearing the case.
The citizens of New Jersey
simply do not have an interest in a foreign university’s failure to
accommodate a student’s disability.
St. Kitts in contrast has a
strong interest in the resolution of this case for all of the
reasons identified by the defendants.
The Court thus finds that
St. Kitts’s interest in having this localized controversy decided
at home strongly favors dismissal.
iii. The Avoidance of Unnecessary Problems in
Conflict of Laws, or in the Application
of Foreign Law
The district court is not required to determine which law the
foreign court would apply.
See Piper Aircraft Co., 454 U.S. at
251; Lacey II, 932 F.2d at 187 n.14.
“The doctrine of forum non
conveniens . . . is designed in part to help courts avoid
conducting complex exercises in comparative law.”
Co., 454 U.S. at 251.
Piper Aircraft
The district court, nevertheless, must
“consider the impact of choice-of-law problems on the forum,
25
particularly since the need to apply foreign law points toward
dismissal.”
Lacey I, 862 F.2d at 48.
In making a choice-of-law determination in a breach of
contract case, the forum that has the most significant relationship
with the parties and the contract is paramount.
Forestal Guarani
S.A. v. Daros Int’l, Inc., 613 F.3d 395, 201 (3d Cir. 2010); see
also Nat’l Prop. Investors VIII v. Shell Oil Co., 917 F.Supp 324,
330 (D.N.J. 1995) (“In contract suits, New Jersey follows
the Restatement (Second) of Conflict of Laws § 188 (1971), which
applies the law of the jurisdiction having the most significant
relation and closest contacts with the transaction and the
parties.”).
The defendants conduct a thorough analysis using the
factors set forth in Restatement (Second) of Conflicts of Laws §§
6, 188 to determine which forum has the most significant
relationship.
(See Defs. Br. at 9-13.)
In doing so, the
defendants conclude that “St. Kitts possesses a vastly more
significant relationship with the contract than New Jersey.”
at 10.)
(Id.
Although this Court need not rule conclusively on the
issue of whether New Jersey or St. Kitts substantive law applies to
this case, the defendants’ analysis of the § 6 and § 188 factors,
coupled with the Court’s previous discussion of each forum’s ties
to the action, is enough to persuade the Court there is a strong
likelihood that the law of St. Kitts should govern the dispute.
26
The uncertainty regarding the application of St. Kitts law is
itself a factor that weighs in favor of dismissal.
F.Supp.2d at 456.
See Miller, 380
This Court, if retaining jurisdiction, will be
burdened by the necessity of undertaking a time-consuming choiceof-law analysis to determine the propriety of applying St. Kitts
law.
See id.
If St. Kitts law applied, the Court would then be
burdened with examining and applying the law of St. Kitts.
As
“[t]he doctrine of forum non conveniens is designed in part to help
courts avoid conducting complex exercises in comparative law. . . .
the public interest factors point towards dismissal where the court
would be required to untangle problems in conflict of laws, and in
law foreign to itself.”
See Piper Aircraft Co., 454 U.S. at 251.
In the interests of having the action resolved in the forum which
bears the most significant relationship to it, and avoiding
unnecessary problems in conflict of laws and the application of
foreign laws, the Court thus finds that this factor weighs strongly
in favor of dismissal.
iv.
The Unfairness of Burdening Citizens in
an Unrelated Forum with Jury Duty
The interest of settling disputes locally and not burdening
jurors with cases that have no impact on their community focuses on
the effect that the resolution of the case would have on
the local community, its citizenry, and other localized
considerations.
Windt, 544 F.Supp.2d at 423.
27
The burden of jury
duty should be placed on those having the closest ties to the
action.
Mediterranean Golf, Inc. v. Hirsh, 783 F.Supp. 835, 840
(D.N.J. 1991).
The Court, as discussed supra, finds that St. Kitts
has the closest ties to this action.
As New Jersey jurors would be
improperly burdened by the need to resolve a matter having no
impact on their community, the unfairness of burdening citizens in
an unrelated forum with jury duty weighs strongly in favor of
dismissal.
As (1) the local New Jersey community has virtually no
interest in the dispute, while St. Kitts has a great interest in
it, (2) the Court can avoid unnecessary problems in conflict of
laws and the application of foreign laws if the remaining claim is
dismissed, and (3) local jurors would be improperly burdened by the
need to resolve a matter having no impact on their community, the
Court concludes that the balance of public interests tips decidedly
in favor of trial in St. Kitts.
b.
The Balance of Private Interests
The Court next examines the relevant private interest factors.
The relevant private interest factors include: (1) the relative
ease of access to sources of proof; (2) the availability of
compulsory process for attendance of unwilling witnesses; (3) the
cost of obtaining attendance of willing witnesses; and (4)
practical considerations that make trial of a case easy,
expeditious, and inexpensive.
Windt, 529 F.3d at 189.
28
i.
Relative Ease of Access to Sources of
Proof
The Court, in examining the relative ease of access to sources
of proof, including, inter alia, the availability of witnesses and
documentary evidence, “must scrutinize the substance of the dispute
between the parties to evaluate what proof is required, and
determine whether the pieces of evidence cited by the parties are
critical, or even relevant to, the plaintiff’s cause of action and
to any potential defenses to the action.”
46.
See Lacey I, 862 F.2d at
“Implicit in the phraseology [of the term relative ease of
access to sources of proof] is that the plaintiff could, if
necessary, gain access to essential sources of proof in either
forum.”
Lacey II, 932 F.2d at 186.
A district court must
therefore “be attuned to potential barriers to access to sources of
proof.”
See Mediterranean Golf, Inc., 783 F.Supp at 846.
Archut notes that the location of relevant documents and other
evidence poses no problem, “as all of the relevant documentation
already has been included in the summary judgment record, or is
otherwise obtainable in the U.S. or through electronic means.”
(See Archut Opp’n Br. at 22.)
The Court acknowledges that the
availability of documentary evidence, particularly in light of
modern technological advancements, is at equipoise.
See, e.g.,
Joint Stock Soc. v. Heublein, Inc., 936 F.Supp 177, 190 (D. Del.
2008) (“[T]he state of technology greatly reduces the burden placed
29
on parties with respect to the storage, production, transfer, and
exchange of information.”).
The parties’ primary dispute regarding the sources of proof is
the identities of the relevant witnesses.
The defendants contend
that the “key witnesses, including Dr. St. Jean [(Ross Associate
Dean for Academic Affairs)], still reside in St. Kitts while others
reside on neighboring islands. . . .
New Jersey -- not even Archut.”
Conversely, no one lives in
(See Defs. Br. at 17.)
Archut asserts that much of the relevant evidence focuses on
the misplacement of her disability documentation by Ross’s New
Jersey office in December 2007.
22.)7
(See Archut Opp’n Br. at 14, 21-
To this end, Archut argues that relevant sources of proof
include individuals who may testify about the alleged breach of
contract, including herself, her father, Bill Bingham, and various
witnesses from West Virginia University.
(See id. at 21-22.)
Archut, in arguing against dismissal pursuant to forum non
conveniens, stresses the location of these witnesses, noting that
she and her father reside in Virginia, her expert witness, Dr. Jane
Jarrow, is located in Ohio, Bill Bingham works in New Jersey, Dr.
Norman Sean Fox (former Ross Associate Dean for Student Life)
recently moved from St. Kitts to Wyoming, and “[Jane] Sanquist
[(Ross Assistant Dean for Academic Administration)] is also leaving
7
For a discussion of Archut’s reasoning as to why much of
the relevant evidence focuses on the misplacement of her
disability documentation, see supra pp. 23-24.
30
Ross in a few months” for Oregon.
(See id.)
Archut concedes that
Elpida Artemiou and Dr. St. Jean remain employed by Ross and reside
in St. Kitts.
(See id. at 22.)
As noted above, the Court is entitled to determine whether the
evidence offered by the parties is critical, or even relevant to
prove or defend the claims.
Lacey I, 862 F.2d at 46.
Although
Bill Bingham purportedly still works in New Jersey, the Court finds
that his relationship with the contract is, at best, tangential.8
The Court thus agrees with the defendants that key witnesses still
live in St. Kitts, while none reside in New Jersey.
The Court therefore finds that, while the availability of
documentary evidence is at equipoise, the ease of access to
witnesses weighs strongly in favor of dismissal.
ii.
The Availability of a Compulsory Process
for Attendance of Unwilling Witnesses
The next step in the balance of private interests inquiry is
to examine the availability of a compulsory process for attendance
of unwilling witnesses.
Windt, 529 F.3d at 189.
Neither party,
however, considers the subpoena power of either forum’s courts.
There is thus no basis in the record to consider the availability
of a compulsory process for attendance of unwilling witnesses as a
8
For the Court’s reasoning as to why Bill Bingham’s
relationship with the contract is, at best, tangential, see
supra pp. 23-25.
31
factor weighing in favor of either party.
See Lony II, 935 F.2d at
613.9
iii. The Cost of Obtaining Attendance of
Willing Witnesses
The cost associated with obtaining the attendance of willing
witnesses weighs in favor of dismissal, because a majority of the
essential witnesses apparently reside either in St. Kitts or on
neighboring islands.
(See Defs. Br. at 17 (stating that “key
witnesses . . . still reside in St. Kitts, while others reside on
neighboring islands”); Defs. Statement at 2 (“[A]ll the people who
make decisions about whether to afford reasonable accommodations
live and work on St. Kitts.”); dkt entry no. 32-19, Pl. Answer to
Interrog. at 1-12 (illustrating that several individuals who have
knowledge of facts relating to allegations in Complaint reside in
St. Kitts).)
While two critical witnesses, Elpida Artemiou and Dr.
St. Jean, live in St. Kitts, only one potential witness, Bill
Bingham, who has an attenuated connection to this action, lives in
New Jersey.
22.)
(See Defs. Br. at 1; accord Archut Opp’n Br. at 21-
As stated supra, Archut concedes that these two essential
witnesses reside in St. Kitts.
(See Archut Opp’n Br. at 21-22.)
9
The Court notes that it lacks subpoena power over the
majority of the witnesses in this case, as most witnesses live
in St. Kitts, its neighboring islands, or in distant regions of
the United States. See Fed.R.Civ.P. 45(b) (federal court’s
subpoena power is limited to service within 100 miles of place
specified for trial). Although the parties mention that St.
Kitts law is based on English common law, the Court declines to
take judicial notice of St. Kitts courts’ subpoena powers.
32
Archut also lists two witnesses located in Oregon and Wyoming.
(See id. at 22.)
The Court recognizes that such witnesses may
incur certain costs if traveling from their state of residency to
either New Jersey or St. Kitts.
Because neither party has
introduced evidence discussing such costs, however, the Court will
not assume that a difference in such costs exists.
As for the witnesses residing in St. Kitts and its neighboring
islands, the Court finds that it will be easier and more
inexpensive for them to attend trial in St. Kitts.
The cost of
obtaining attendance of willing witnesses therefore weighs strongly
in favor of dismissal.
iv.
Practical Considerations that Make Trial
of a Case Easy, Expeditious, and
Inexpensive
The Court finds that practical considerations that make trial
of a case easy, expeditious, and inexpensive favor a St. Kitts
forum.
Archut argues that the location of the witnesses does not
support the defendants’ position because only two witnesses live in
St. Kitts.
(See id. at 21-22.)
The defendants argue in contrast,
as discussed supra, that the key witnesses still reside in St.
Kitts and on neighboring islands, so “it will be easier and cheaper
for them to attend trial in St. Kitts.”
(Defs. Br. at 17.)
The
cost of litigating in a distant forum necessarily creates financial
difficulty for each party.
While St. Kitts may not be easy or
inexpensive for Archut, she would also be burdened financially by a
33
trial in New Jersey, as she does not reside in New Jersey.
St.
Kitts alternatively would be much more convenient and inexpensive
for the defendants and the majority of the witnesses involved in
the case.
(See Defs. Br. at 17-18.)
Archut relies heavily on the notion that, because Ross has an
office in New Jersey, it would not be inconvenient for it to defend
this case in New Jersey.
(See Archut Opp’n Br. at 21.)
In support
of her argument, Archut cites a case from the District of New
Jersey, Dean-Hines v. Ross University School of Veterinary
Medicine, No. 05-3486 (Aug. 10 2006) (dkt. entry no. 30).
The
Court notes that the facts of this case, the claims at issue, and
the proof offered by the defendants distinguish this case from
Dean-Hines.
For instance, the Dean-Hines court found that the
movants failed to meet their burden of showing that St. Kitts would
be an adequate alternative forum in part because the movants did
not show that St. Kitts had statutes similar to the federal
statutes under which the plaintiff brought her claims.
Hines, No. 05-3486, at *11.
See Dean-
The Court here has determined that the
defendants met their burden in this respect.10
Moreover, in
balancing the public and private interests, the Dean-Hines court
relied on an “allegation that Ross’s headquarters are located in
Edison, New Jersey.”
See id.
This Court, however, has found that
10
For a discussion of whether St. Kitts is an adequate
alternative forum, see supra pp. 9-18.
34
Ross operates on St. Kitts and merely receives “some administrative
support” from the New Jersey office.
(See 11-19-12 Mem. Op. at 3.)
For all the reasons stated supra regarding the respective
connections each forum has with the subject matter of this action,
the Court finds that it would be inconvenient for Ross to defend
this case in New Jersey.
Other factual considerations also guide the Court’s analysis.
A plain reading of the parties’ papers makes it apparent that the
crux of the alleged wrongdoings -- that is, the defendants’ alleged
breach of contract -- occurred in St. Kitts.
Because of this, as
discussed supra, the Court is persuaded that there is a strong
likelihood that the law of St. Kitts governs the dispute.
As the
law of St. Kitts likely governs the dispute, trial of the case in a
St. Kitts forum will be much easier and expeditious.
The Court finds that: (1) the availability of documentary
evidence is at equipoise, and the ease of access to witnesses
weighs strongly in favor of dismissal; (2) it cannot weigh
availability of a compulsory process factor in favor of either
party; (3) the cost of obtaining attendance of willing witnesses
weighs strongly in favor of dismissal; and (4) the practical
considerations that make trial of a case easy, expeditious, and
inexpensive favor a St. Kitts forum.
Although the private interest
factors are not as one-sided as the public interest factors, the
35
Court finds that a quantitative assessment of the private interest
factors nevertheless tips decidedly in favor of dismissal.
c.
The Balancing of Factors
The Court finds that the relevant public and private interest
factors tip decidedly in favor of dismissal on the basis of forum
non conveniens.
The balance of interests favors the defendants to
such an extent that it overcomes this Court’s deference to Archut’s
choice of forum.
As retention of jurisdiction would “result in
oppression [and] vexation to the defendant[s] out of all proportion
to [Archut’s] convenience,” the Court will dismiss the remaining
claim pursuant to forum non conveniens.
See Windt, 529 F.3d at
190.
III. CONCLUSION
For the foregoing reasons, the defendants’ motion, insofar as
it seeks dismissal of the remaining claim on the grounds of forum
non conveniens, will be granted.
To prevent any prejudice to
Archut, the Court will condition dismissal on certain waivers by
the defendants.
Dismissal will be conditioned on: (1) the
defendants’ waiver of any statute of limitations defenses that they
might otherwise have in St. Kitts, should Archut bring this action
in St. Kitts within 90 days of the date of entry of the order and
judgment; and (2) the defendants’ stipulation to submit to personal
jurisdiction in St. Kitts, should Archut bring this action in St.
36
Kitts within 90 days of the date of entry of the order and
judgment.
The Court will issue an appropriate order and judgment.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: October 30, 2013
37
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