Augstein v. Leslie

Filing 15

OPINION & ORDER re: 6 MOTION to Dismiss the Complaint filed by Anthony Ryan Leslie. After considering the parties arguments, dismissal on grounds of forum non conveniens is not appropriate here, and Defendant's motion is denied. The Clerk of Court is instructed to close this motion (Dkt. # 6) and remove it from my docket. (Signed by Judge Harold Baer on 1/10/2012) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
ARMIN AUGSTEIN,
Plaintiff,
OPINION & ORDER
-against11 Civ. 7512 (HB)
ANTHONY RYAN LESLIE,
a/k/a RYAN LESLIE,
Defendant.
--------------------------------------------------------------X
Hon. HAROLD BAER, JR., District Judge:
Before the Court is a motion filed by defendant Ryan Leslie (“Defendant”) to dismiss this
complaint on grounds of forum non conveniens. For the following reasons the motion is
DENIED.
I. Factual Background
The relevant facts, as alleged in the Complaint and in the affidavits and declarations
submitted by the parties in connection with the current motion, are as follows. Defendant, a New
York resident, advertised a $1 million reward for the return of his laptop and other personal
property that was stolen in Germany. Armin Augustein (“Plaintiff”), a German resident, found
the laptop in Germany, returned it to Defendant in New York, and sought the reward. Defendant
refused to pay the reward because the intellectual property for which the Defendant valued the
laptop was allegedly not present on the hard drive when it was returned. Plaintiff alleges to have
evidence in the United States that the hard drive’s memory was erased after Defendant received
it from Plaintiff.
II. Discussion
Defendant moves to dismiss this complaint on grounds of forum non conveniens arguing
that the action would be more appropriately brought in Germany. Forum non conveniens is a
discretionary device that allows courts “in rare instances to dismiss a claim even if the court is a
permissible venue with proper jurisdiction over the claim.” Wiwa v. Royal Dutch Petroleum Co.,
226 F.3d 88, 100 (2d Cir. 2000) (citation and internal quotation marks omitted). When deciding
a motion to dismiss on forum non conveniens grounds, courts in this district follow a three step
1

analysis as outlined by the Second Circuit. A court must: (1) determine the degree of deference
properly accorded the plaintiff's choice of forum; (2) consider the adequacy of the alternative
forum to adjudicate the parties’ dispute; and (3) balance the private and public interests
implicated by the choice of forum. Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146,
153 (2d Cir. 2005). The defendant has the burden to show that an adequate alternative forum
exists and that the balance of interests strongly weigh toward dismissal in favor of the foreign
forum. Wiwa, 226 F.3d at 100.
1. Deference to Plaintiff’s Choice of Forum
With respect to the first prong, a plaintiff's choice of forum is generally entitled to less
deference when a foreign plaintiff has sued in a United States forum rather than his home forum.
Iragorri v. United Techs. Corp., 274 F.3d 65, 71 (2d Cir. 2001). The rationale is that there is less
reason to presume that the United States is a convenient forum for a foreign plaintiff as well as a
greater likelihood that the plaintiff is motivated by forum-shopping or to pursue some other
improper litigation advantage. See Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64,
71 (2d Cir. 2003). However, the Circuit has cautioned that the reduced weight afforded to a
foreign plaintiff’s choice of a United States forum is “not an invitation to accord a foreign
plaintiff’s selection of an American forum no deference since dismissal for forum non
conveniens is the exception rather than the rule.” Murray v. British Broadcasting Corp., 81 F.3d
287, 290 (2d Cir. 1996) (internal citation and quotation marks omitted) (emphasis in original).
Here, although Plaintiff’s choice of this Court as its forum is entitled to reduced
deference because he is a German citizen, Plaintiff provides sufficient reason to rebut the
presumption that forum shopping is the motivating factor. Plaintiff argues that Defendant resides
in and has assets in this district, the personal property in question and communications regarding
it were sent to this district, and issues regarding what happened to the hard drive subsequent to
its return involve witnesses located in the United States. Plaintiff’s choice of forum appears to
have a rational basis other than forum shopping and is therefore entitled to at least some
deference.
2. Adequacy of the Alternative Forum
Next, I must determine whether an alternative forum is available. “An alternative forum
is adequate if: (1) the defendants are subject to service of process there; and (2) the forum
permits ‘litigation of the subject matter of the dispute.’” Alfadda v. Fenn, 159 F.3d 41, 45 (2d
2

Cir. 1998) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981)). Defendant has
submitted an affidavit stating that he is “amenable to service of process in Germany and
consent[s] to be subject to the jurisdiction o[f] the German courts.” 11/28/2011 Affidavit of
Defendant, Exhibit B to Doherty Affirmation. Plaintiff concedes that submission to the
jurisdiction of the foreign forum generally satisfies this requirement but argues that Defendant
has not shown German courts permit litigation of this subject matter. This latter issue is not fatal
to Defendant because if I were to determine that the private and public interests weigh toward
dismissal, I could dismiss this case on the condition that Plaintiff may re-file if the German
courts do not accept the case for jurisdictional reasons. See, e.g., In re Rezulin Prods. Liab.
Litig., 214 F. Supp. 2d 396, 401 (S.D.N.Y. 2002) (dismissal conditioned on consent to personal
jurisdiction, waiver of statute of limitations, and other conditions).
3. Balance of Interests
Finally, I must balance the private and public interests to decide whether the case should
be adjudicated in the Plaintiff’s chosen forum or the alternative forum proposed by Defendant.
Private interest factors include “‘the relative ease of access to sources of proof; availability of
compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; possibility of view of premises, if view would be appropriate to the action; and all
other practical problems that make trial of a case easy, expeditious and inexpensive.’” Iragorri,
274 F.3d at 73-74 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). In considering
these factors with respect to the precise issues that are likely to actually be tried, the court
necessarily compares the hardship to the defendant through the retention of jurisdiction and the
hardship to the plaintiff from dismissal and the obligation to bring suit in another country.” Id. at
74.
On balance, the private interest factors favor adjudication in this forum. Notwithstanding
Defendant’s attempts to emphasize the events surrounding the theft and recovery of his personal
property, all of which occurred in Germany, the central issue here is the Defendant’s reason for
not paying the reward, that is, that the intellectual property on which the reward was allegedly
based was missing upon its return. The key witnesses are here in the United States and include
the individuals who allegedly reformatted the hard drive at Defendant’s request. Additionally,
the communications between the parties and reward offer were in English. Although the
Defendant may seek to introduce some evidence arising out of events in Germany, the disputes
3

over those events appear at this juncture to be less significant that the dispute over what
transpired in the United States.
Public interest factors include administrative difficulties associated with court congestion,
the burden of jury duty on a community that has no relation to the litigation, the local interest in
having localized controversies decided at home, and avoidance of problems involving the
application offoreign law. DiRenzo v. Philip Servs. Corp., 294 F.3d 21, 31 (2d Cir. 2002)
(citing Gilbert, 330 U.S. at 508-09). "When deciding aforum non conveniens motion, a court
may properly rely on the difficulties attending the resolution of questions of foreign law."

Scottish Air Int'I., Inc. v. British Caledonian Group, PLC, 81 F.3d 1224. 1234 (2d Cir. 1996).
However. courts "must guard against an excessive reluctance to undertake the task of deciding
foreign law, a chore federal courts must often perform." Manu In! 'I, SA. v. Avon Products, Inc.,
641 F.2d 62, 68 (2d Cir. 1981).
Here, the public interest concerns are less significant and do not favor dismissal. The
complaint contains two counts, the first seeking relief under New York law and the second
seeking relief under German law. Without entertaining a full choice of law analysis, even
assuming this Court were to apply German law, the applicable legal issues do not appear to be so
complex as to be unmanageable. Additionally, given that Defendant is a New York resident,
there is a local community interest in adjudicating this dispute here despite the fact that the
laptop was stolen in Germany.

III. Conclusion
After considering the parties arguments, dismissal on grounds of forum non conveniens is
not appropriate here, and Defendant's motion is denied. The Clerk of Court is instructed to close
this motion (Dkt. # 6) and remove it from my docket.

New York, New York

January ltl,2012
HAROLD BAER, JR.
United States District Judge

4