TARGET GLOBAL LOGISTICS SERVICES, CO. v. KVG, LLC

Filing 106

MEMORANDUM/OPINION THAT DEFENDANT'S MOTION FOR PARTIAL DISMISSAL IS DENIED. AN APPROPRIATE ORDER FOLLOWS. SIGNED BY MAGISTRATE JUDGE HENRY S. PERKIN ON 4/12/17. 4/13/17 ENTERED AND COPIES MAILED TO UNREPS AND E-MAILED.(ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
________________________________________________
:
TARGET GLOBAL LOGISTICS SERVICES, CO.
:
:
Plaintiff/Counterclaim Defendant
:
v.
:
CIVIL ACTION NO.
:
15-4960
KVG, LLC
:
:
Defendant/Counterclaim Plaintiff
:
v.
:
:
QAIS ANIL MEDICAL EQUIPMENT COMPANY LTD :
MOHAMMAD SEDIQ and ASIA PHARMA LTD
:
:
Counterclaim Defendants
:
________________________________________________:
Henry S. Perkin, M.J.

April 12, 2017
MEMORANDUM

This matter is before the Court on the Motion for Partial Dismissal by Reason of
Forum Non Conveniens and Memorandum of Law in Support of Partial Dismissal for Forum
Non Conveniens filed by Defendant KVG, LLC on January 13, 2017 and January 15, 2017,
respectively. Plaintiff’s Brief in Opposition to Defendant, KVG’s Motion to Dismiss for Forum
Non Conveniens was filed on January 29, 2017, and Defendant’s Reply Brief in Support of
Defendant KVG’s Motion for Partial Dismissal for Forum Non Conveniens was filed on March
30, 2017. Having reviewed and considered the contentions of the parties, the Court is prepared
to rule on this matter.

Background
Target Global Logistics Services, Co. (“Plaintiff”), a company located in Kabul,
Afghanistan, entered into two “Prime-Subcontractor Purchase Agreements” with KVG, LLC
(“Defendant”), a company located in Elizabethtown, Pennsylvania. Complaint ¶¶ 5-6, 8. The
Agreements required Plaintiff to act as a sub-contractor under an agreement that Defendant had
entered into with the United States. Id. ¶¶ 1, 6. The Agreements called for Plaintiff to deliver
certain medical equipment and supplies, for which Defendant was to pay Plaintiff $678,534.83
under the first Agreement and $179,136.48 under the second Agreement. Id. ¶¶ 8-11. Each
Agreement required Defendant to pay Plaintiff for the goods within thirty days of delivery. See
id. ¶ 12. Although Plaintiff requested payment from Defendant on October 15, 2014, Defendant
failed to pay for the medical supplies and equipment that Plaintiff delivered. Id. ¶ 13.
On January 10, 2016, Defendant filed its Answer and Counterclaim against
Plaintiff. On June 10, 2016, this Court dismissed said Counterclaim without prejudice and on
June 22, 2016, Defendant filed its First Amended Counterclaim against Plaintiff with a Joinder
of three additional nonresident, Afghani Defendants. The counterclaim against Plaintiff consists
of nine different claims. Although Plaintiff filed a motion to dismiss Defendant’s counterclaim,
the motion was denied, and Plaintiff filed its Answer and Affirmative Defenses to the Amended
Counterclaim on October 18, 2016. The Defendant later sought default judgments against the
additional defendants, which were entered by the Court.
On January 13, 2017, Defendant filed a motion for partial dismissal of the claims
brought by Plaintiff on the basis of forum non conveniens. However, while Defendant asserts
that Plaintiff’s claims against it should be dismissed because the chosen forum is improper,
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Defendant avers that its counterclaims brought against Plaintiff should remain with this Court.
Legal Standard
As correctly noted by the parties, the doctrine of forum non conveniens gives a
district court the discretion to dismiss an action when an alternative forum is available to hear the
plaintiff’s claim and the plaintiff’s chosen forum is oppressive and vexatious to the defendant.
Although a plaintiff’s choice of forum should rarely be disturbed, “[w]hen 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,’
or when the ‘chosen forum [is] inappropriate because of considerations affecting the court’s own
administrative and legal problems,’ the court may, in the exercise of its sound discretion, dismiss
the case.” Kisano Trade & Invest Ltd. v. Lemster, 737 F.3d 869, 873 (3d Cir. Pa. 2013)
(citations omitted).
“[A] district court must first determine whether an adequate alternative forum can
entertain the case.” Windt v. Qwest Communications Int’l., Inc., 529 F.3d 183, 189–190 (3d Cir.
2008) (footnote omitted); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n. 22, 102
S.Ct. 252, 70 L.Ed.2d 419 (1981). “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.” Windt, 529
F.3d at 190. The United States Court of Appeals for the Third Circuit has identified the
following four factors to guide a district court’s exercise of discretion: (1) the amount of
deference to be afforded to plaintiff’s choice of forum; (2) the availability of an adequate
alternative forum where defendants are amenable to process and plaintiff’s claims are cognizable;
(3) relevant “private interest” factors affecting the convenience of the litigants; and (4) relevant
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“public interest” factors affecting the convenience of the forum. Kisano Trade, 737 F.3d at 873
(citing Windt, 529 F.3d at 189–190).
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. Kisano
Trade, 737 F.3d at 873 (citing Delta Air Lines, Inc. v. Chimet, S.p.A., 619 F.3d 288, 296 (3d Cir.
2010) and Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1055 (1947)).
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,
737 F.3d at 873 (citing Piper Aircraft, 454 U.S. at 241 n.6).
Discussion
A. Level of Deference
Initially we note that Defendant contends that less deference should be given to
Plaintiff’s choice of forum because it is a foreign corporation. See Memorandum of Law in
Support of Partial Dismissal for Forum Non Conveniens (“Def. Brief”), Dkt. No. 87 at 5.
“Ordinarily, a strong presumption of convenience exists in favor of a domestic plaintiff’s chosen
forum, and this presumption may be overcome only when the balance of the public and private
interests clearly favors an alternate forum.” Kisano Trade, 737 F.3d at 873-874 (citing Windt,
529 F.3d at 190). When a plaintiff is foreign, however, the choice of a United States forum
“deserves less deference.” Kisano Trade, 737 F.3d at 874 (citing Piper Aircraft, 454 U.S. at 256;
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Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430, 127 S. Ct. 1184, 167 L.
Ed. 2d 15 (2007) (“When the plaintiff’s choice is not its home forum, . . . the presumption in the
plaintiff’s favor applies with less force, for the assumption that the chosen forum is appropriate is
in such cases less reasonable.” (internal quotation marks omitted)).
However, the Third Circuit has explained that the focus of the deference inquiry
in the United States Supreme Court, and in this Circuit, “is on convenience, not on the particular
significance of a party’s residence or citizenship or a party’s ability to invoke a United States
court’s jurisdiction.” Kisano Trade, 737 F.3d at 875. Foreign plaintiffs “may bolster the amount
of deference due their choice by making a strong showing of convenience.” Kisano Trade, 737
F.3d at 875 (citing Windt, 529 F.3d at 190). Generally, “the greater the plaintiff’s or the
lawsuit’s bona fide connection to the United States and to the forum of choice and the more it
appears that considerations of convenience favor the conduct of the lawsuit in the United States,
the more difficult it will be for the defendant to gain dismissal for forum non conveniens.”
Kisano Trade, 737 F.3d at 876 (citing Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir.
2001) (footnotes omitted)).
While a review of the case law cited by Defendant may lend some support to
finding that Plaintiff, a foreign corporation, should be afforded a lesser degree of deference than
that which would be accorded a domestic plaintiff, we conclude nevertheless that an examination
of the remaining factors more than supports our final conclusion that this case should not be
dismissed on the basis of forum non conveniens.

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B. Availability of an Adequate Alternative Forum
Generally, an adequate alternative forum exists where a defendant is amenable to
service of process, plaintiff’s claims are recognized there, and the applicable statute of limitations
had not expired. See Piper Aircraft, 454 U.S. at 254 n. 22 (“Ordinarily th[e alternative forum]
requirement will be satisfied when the defendant is amenable to process in the other
jurisdiction.”) (internal quotation marks and citations omitted); Kisano Trade, 737 F.3d at 873
(an adequate alternative forum is where, inter alia, “defendants are amenable to process and
plaintiffs’ claims are cognizable.”).
Defendant avers that because Plaintiff holds itself out as an Afghanistan-based
company, and because Afghanistan has a “specialized court that deals in commercial affairs,”
Afghanistan would be an adequate alternative forum for Plaintiff to pursue its claims. Def. Brief
at 3-4. Defendant further asserts that even though it does not currently do business in
Afghanistan, it would submit to the jurisdiction of Afghanistan in order to create the adequate
alternative forum. See Defendant’s Reply Brief in Support of Defendant KVG’s Motion for
Partial Dismissal for Forum Non Conveniens (“Def. Reply”), Dkt. No. 101 at 4, 7.
Plaintiff avers that under Afghan law and procedure, it has no way of advancing
its claims against Defendant in the Country of Afghanistan because it is a company organized
and existing in the United States, specifically Pennsylvania. Plaintiff asserts that Defendant is
outside the jurisdiction of Afghanistan with no ties whatsoever to the country, maintaining no
physical address or location therein. In addition, Plaintiff contends that Defendant has no
property, assets or agent/principle physically present in Afghanistan. Plaintiff further submits
that the contracts at issue were entered into in the United States. See Plaintiff’s Brief in
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Opposition to Defendant, KVG’s Motion to Dismiss for Forum Non Conveniens (“Pl. Brief”),
Dkt. No. 93 at 10. This Court notes, however, that Defendant avers in its motion that the entire
business dealing was executed outside the United States.
Clearly, the parties are in dispute as to whether Afghanistan is an adequate
alternate forum for Plaintiff’s claims. Moreover, although Defendant avers that it would be
willing to submit to the jurisdiction of Afghanistan, it is unclear whether Plaintiff’s claims would
be cognizable in that jurisdiction. In particular, neither party addresses whether the applicable
statue of limitations as to Plaintiff’s claims has expired. Based on the information provided, it is
not clear to the Court that an adequate alternate forum actually exists for Plaintiff to pursue its
claims. Nevertheless, when we examine the private and public interest factors, it is clear that
Plaintiff’s chosen forum does not cause “oppressiveness and vexation to a defendant . . . out of
all proportion to plaintiff’s convenience.” Kisano Trade, 737 F.3d at 877.
C. “Oppressiveness and Vexation”
Next, we weigh the private and public interest factors in order to determine
whether Plaintiff’s chosen forum would cause “oppressiveness and vexation to a defendant . . .
out of all proportion to plaintiff’s convenience.” Kisano Trade, 737 F.3d at 877 (citing Koster v.
(American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 524 (1946)). When seeking
dismissal on grounds of forum non conveniens, a defendant must show that the balance of public
and private factors “tips decidedly in favor of trial in the foreign forum.” Kisano Trade, 737 F.3d
at 877 (citing Lacey v. Cessna Aircraft Co., 932 F.2d 170, 180 (3d Cir. 1991)).

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1. Private Interest Factors
As explained 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. Kisano Trade, 737 F.3d at 873 (citing Delta Air Lines, Inc.
v. Chimet, S.p.A., 619 F.3d 288, 296 (3d Cir. 2010) and Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
508, 67 S. Ct. 839, 91 L. Ed. 1055 (1947)).
We note initially that the motivating factor behind Defendant’s motion for
dismissal appears to be the inability of Plaintiff’s principal member, Yama Ahmadi, to gain
admission into the United States by way of visa entry. Def. Br. at 2-3. However, based on the
undersigned’s Order dated January 19, 2017, the parties to this action were directed to make
parallel inquiries as to an agreeable alternate location for the deposition of Mr. Ahmadi in the
event that he was denied visa entry into the United States. Based on correspondence received to
date, each of the parties have proposed alternate locations in an effort to secure this deposition.
Aside from Plaintiff’s representative, however, it appears that most, if not all,
other witnesses to this matter are currently located in the United States. In addition, as a contract
action, we note that this matter is document intensive, where much of the evidence to be
presented at trial will be offered by documents and written correspondence, as opposed to
testimony. Moreover, Defendant itself, is a United States Company organized and existing in the
State of Pennsylvania, presumably with its officers who maintain residences in the United States.
This matter has already been pending in this jurisdiction for at least eighteen
months, and the pleadings are now closed. This Court has heard, and resolved a number of
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procedural matters and discovery disputes concerning this matter. Default judgments have been
entered by this Court against additional defendants joined by Defendant. In addition, dispositive
motions have been filed, and oral argument is scheduled before the undersigned for next month.
In addition to the foregoing considerations, we also find that the amount of time and court
resources already spent on this matter weigh against dismissal of this action on the basis of forum
non conveniens.
2. Public Interest Factors
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, 737 F.3d at 873 (citing Delta Air Lines, 619 F.3d at 296; Gulf Oil
Corp., 330 U.S. at 508; and Piper Aircraft, 454 U.S. at 241 n.6).
As indicated above in terms of our discussion of the private interest factors, this
Court has already invested substantial resources in this matter. Substantial progress has been
made, the pleadings are closed, and dispositive motions have recently been filed. It does not
seem practical to dismiss this action to an alternate jurisdiction, assuming one exists, at this stage
of the litigation.
Perhaps most significant, however, is that while Defendant seeks to dismiss
Plaintiff’s claims against it on the basis of forum non conveniens, it requests that this Court retain
jurisdiction here in the Eastern District with respect to its multiple counterclaims against
Plaintiff, which are based on other contracts entered it into with Plaintiff. These contracts
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involve similar transactions and occurrences as those pled by Plaintiff. In other words, by its
request, Defendant seeks to burden two jurisdictions with the claims that are presently contained
in this matter. We find that this request directly conflicts with the public interest factor regarding
overburdening courts, and certainly weighs against dismissal of this action on the basis of forum
non conveniens.
Conclusion
For the foregoing reasons, Defendant’s motion for partial dismissal is denied. An
appropriate order follows.

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