Blaimauer v. Omniglow Corp.
Blaimauer v. Omniglow Corp.
Opinion of the Court
OPINION & ORDER
These cases arise from a disaster that occurred on November 11, 2000, in which a ski train in Kaprun, Austria caught fire, killing 155 people. American and foreign survivors and/or relatives of those who died in the fire brought a number of lawsuits in federal court against numerous defendants alleging, inter alia, negligence and strict liability. The Judicial Panel on Multidistrict Litigation assigned these actions to this Court for coordinated or consolidated pretrial proceedings. The actions within this multidistrict litigation (“MDL”) fall easily into two groups — those filed on behalf of American plaintiffs,
1. BACKGROUND
Both Blaimauer and Geier were filed originally on November 10, 2003, and since have been amended numerous times. According to the most recently amended complaints, the Blaimauer plaintiffs all hail from Germany, Austria, Japan and Slovenia;
Because all defendants named in Blai-mauer and Geier are American corporations, this Court presumably has federal diversity jurisdiction pursuant to section 1332 of title 28 of the United States Code.
II. APPLICABLE LAW
A. Collateral Estoppel
“Under the doctrine of offensive collateral estoppel, a plaintiff may preclude a defendant from relitigating an issue the
B. Forum Non Conveniens
“Forum non conveniens is a discretionary device permitting a court in rare instances to dismiss a claim even if the court is a permissible venue with proper jurisdiction over the claim.”
In deciding whether to dismiss for forum non conveniens, courts in this Circuit undertake a three-step analysis. First, courts determine the degree of deference due the plaintiffs choice of forum.
1. The Degree of Deference Accorded a Plaintiffs Choice of Forum
“Any review of a forum non conveniens motion starts with ‘a strong presumption in favor of the plaintiffs choice of forum.’ ”
A “plaintiffs choice of forum is generally entitled to great deference when the plaintiff has sued in the plaintiffs home forum.”
Courts must also consider whether the plaintiffs choice of forum appears to be “motivated by desire to impose tactical disadvantage on the defendant.”
2. Adequacy of the Alternate Forum
After determining the appropriate degree of deference to accord plaintiffs choice, “the court must consider whether an adequate alternative forum exists.”
However, it is the plaintiff that carries the burden of proof when contesting the adequacy of the alternate forum on the basis that the court system is corrupt or inefficient, because “considerations of comity preclude a court from adversely judging the quality of a foreign justice system absent a showing of inadequate procedural safeguards.”
3. Balancing Public and Private Factors
With respect to the third stage of a forum non conveniens analysis, the first set of factors courts must consider are the relative conveniences to the parties of litigating in plaintiffs chosen forum or in the alternative forum proposed by defendant.
The second set of factors courts must balance are those of public convenience. “Public interest factors include: court con-
III. DISCUSSION
A. Collateral Estoppel
As a threshold consideration, plaintiffs argue that the doctrine of collateral estoppel precludes defendants moving for forum non conveniens dismissal.
B. Forum Non Conveniens
1. Deference to Plaintiffs’ Choice of Forum
From the outset, because none of these plaintiffs is an American citizen, plaintiffs’ choice of the United States as a forum commands “considerably less” deference than it would if this country were their home.
To start, defendants observe that nowhere in plaintiffs’ opposition do they articulate a single legitimate, substantiated justification for electing to pursue their claims in the United States.
As foreigners, plaintiffs properly can invoke this Court’s diversity jurisdiction by bringing suit against American business entities, ie., STS, a Delaware corporation; Hydac, a Pennsylvania corporation; and Wika, a New York corporation. Plaintiffs, however, cannot bring suit in this Court where another foreign entity is named as the primary defendant, for such party would destroy diversity.
C. Austria as an Adequate Forum
Defendants have met their burden of demonstrating the adequacy of an alternative forum. Defendants offer unrebut-ted evidence that Austria has an effective and efficient judicial system,
D. Balancing of Public and Private Interests
1. Private Convenience Factors
Defendants show that private interest factors weigh in favor of dismissal. No relevant events occurred in the United States, no relevant evidence is located in this county, and most key defendants and key witnesses (including most plaintiffs) are found in Austria or elsewhere in Europe. Plaintiffs argue that “everything that has occurred in this case in the last five years strengths [sic] the Courts [sic] keeping the plaintiffs [sic] claims in the United States,” but the record in these cases demonstrates precisely the opposite.
Nor do plaintiffs refute defendants’ contentions that the difficulties the American plaintiffs’ have had in pursuing their Ka-prun-related litigation here in the United States reinforces the conclusion that Austria would be a far more convenient forum.
Most of the witnesses necessary to prosecute the foreign plaintiffs’ cases also hail from Europe (even apart from the plaintiffs themselves). Plaintiffs claim, without basis, that “[wjhistleblower witnesses have come forward with critical evidence that can only be presented in the United States and others [sic],”
Plaintiffs bootstrap their argument that private convenience factors tip against dismissal on this Court’s previous decision in Ski Train III. As noted above, plaintiffs’ reliance on that opinion is misplaced, for it addressed forum non conveniens issues with respect to the Habblett cases. As a threshold comparison, because the plaintiffs in those actions are American, the
Another private interest that weighs heavily in favor of dismissal here — which was not present in the Habblett cases — is the fact that defendants will be unable to implead certain foreign parties as third-party defendants because doing so would defeat diversity.
Lastly, plaintiffs fail to address the fact that Austria does not recognize foreign judgments, and thus no decision rendered in this litigation would be accorded res judicata effect in Austria.
2. Public Convenience Factors
The balance of public interests also weighs heavily in favor of dismissal. First, there is no dispute that the Kaprun tragedy was the most deadly national tragedy in Austria since World War II. Accordingly, Austria undoubtedly has a significant “ ‘local interest in having [this] localized controvers[y] decided at home.’ ”
Plaintiffs also neglect defendants’ assertions that because Austrian tort law is undergoing reexamination and revision in the wake of the Kaprun disaster, the task of ascertaining and applying Austrian law will be unusually difficult.
III. CONCLUSION
In accordance with this Court’s findings that plaintiffs’ choice of forum is entitled to greatly diminished deference, that Austria is an adequate alternative forum, and that the scales of convenience tip overwhelmingly in favor of dismissal, all five actions within this MDL brought solely on behalf of foreign plaintiffs are dismissed on the ground of forum non conveniens.
SO ORDERED.
. See, e.g., Habblett v. Omni-Glow Corp., Nos. 01 MDL 1428, 02 Civ. 2492 (filed April 1, 2002) Civ. 2492 (filed April 1, 2002); Habblett v. Siemens AG, Nos. 01 MDL 1428, 01 Civ. 6554 (filed July 19, 2001). Hereafter, I refer to the cases brought on behalf of American plaintiffs as the “Habblett cases.”
. The parties have engaged in extensive motion practice. To avoid repetitive briefing, only one defendant, Siemens Transportations Systems, Inc., briefed the motion to dismiss Blaimauer and Geier on the ground of forum non conveniens, which the remaining Blaimauer and Geier defendants incorporated by reference into their individually-filed motions to dismiss. Similarly, the defendants in Mitsumoto v. Robert Bosch jointly move for dismissal on the ground of forum non conveniens, as briefed by Exxon Mobil. See Memorandum of Law in Support of Exxon Mobil Corporation's Motion to Dismiss ("Exxon Mem.”) at 13-22. Motions to dismiss have not yet been filed in Mitsumoto v. The Republic of Austria (all briefing of dis-positive motions was stayed pending service of plaintiffs’ amended complaint on sovereign defendants), or in Stadman v. Austrian Nat’l Tourist Office Inc. (filed May 17, 2007).
. Because I dismiss these actions based on forum non conveniens, I do not reach defendants' alternative arguments for dismissal, such as those predicated on statutes of limitations.
. For a more thorough discussion of the procedural history of this MDL, see In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, Nos. 01 MDL 1428, 01 Civ. 6554, 01 Civ. 7242, 04 Civ. 1402, 2005 WL 1523508, at *1-2 (S.D.N.Y. June 27, 2005) ("Ski Train I”); In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 230 F.Supp.2d 403, 404 (S.D.N.Y. 2002) (“Ski Train II"). There have been many more rulings in this MDL than I cite herein; it is only for ease of reference that throughout this Opinion, I assign these decisions consecutive roman numerals in the order in which I refer to them.
. See Blaimauer Fourth Amended Complaint (“Blaimauer 4th Amend. Compl.”) ¶ 3.
. Geier Fourth Amended Complaint {“Geier 4th Amend. Compl.”) ¶ 3.
. See 28 U.S.C. § 1332.
. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., - U.S. -, -, 127 S.Ct. 1184, 1188, 167 L.Ed.2d 15 (2007) (holding that "a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if it determines that, in any event,” the case may be properly dismissed under the doctrine of forum non con-veniens).
. Faulkner v. National Geographic Enters. Inc., 409 F.3d 26, 37 (2d Cir. 2005) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)).
. Id. (quoting Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986)).
. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 100 (2d Cir. 2000) (quotations and citation omitted).
. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (quotations and citation omitted).
. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).
. See Iragorri v. United Techs. Corp., 274 F.3d 65, 73 (2d Cir. 2001) (en banc).
. See id.
. See id. at 73-74.
. Wiwa, 226 F.3d at 108. Accord P.T. United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 74 (2d Cir. 1998).
. Iragorri, 274 F.3d at 74-75.
. Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 154 (2d Cir. 2005) (quoting Piper Aircraft, 454 U.S. at 255, 102 S.Ct. 252).
. Iragorri, 274 F.3d at 71.
. See id. at 73-74.
. Id. at 74.
. Id. at 72.
. Piper Aircraft, 454 U.S. at 255, 102 S.Ct. 252.
. Norex Petroleum, 416 F.3d at 154 (quoting Iragorri, 274 F.3d at 71).
. Piper Aircraft, 454 U.S. at 256, 102 S.Ct. 252.
.Iragorri, 21A F.3d at 73.
. Norex Petroleum, 416 F.3d at 154.
. Iragorri, 274 F.3d at 72. Accord Norex Petroleum, 416 F.3d at 155.
. Iragorri, 21A F.3d at 73.
. See Norex Petroleum, 416 F.3d at 157.
. Piper Aircraft, 454 U.S. at 255 n. 22, 102 S.Ct. 252.
. See id. at 247, 102 S.Ct. 252.
. Id.
. Norex Petroleum, 416 F.3d at 159. With respect to the cases at bar, plaintiffs do not allege that their claims must be brought in the United States because they would be time-barred in Austria.
. P.T. United Can, 138 F.3d at 73.
. Id. (quoting Blanco v. Banco Indus. de Venezuela, S.A., 997 F.2d 974, 982 (2d Cir. 1993)).
. Eastman Kodak Co. v. Kavlin, 978 F.Supp. 1078, 1084 (S.D.Fla. 1997) (collecting cases).
. 433 F.3d 1163, 1178-80 (9th Cir. 2006) (affirming dismissal on other grounds).
. Leon v. Million Air, Inc., 251 F.3d 1305, 1312 (11th Cir. 2001).
. See Iragorri, 274 F.3d at 73.
. Id. at 73-74 (quoting Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839).
. Id. at 74.
. Piper Aircraft, 454 U.S. at 252, 102 S.Ct. 252.
. Carey v. Bayerische Hypo-Und Vereinsbank, A.G., 370 F.3d 234, 237 (2d Cir. 2004).
. See Plaintiffs' Response to [Second] Motion to Dismiss Based on Alleged Forum Non Conveniens and Statute of Limitations Grounds ("PI.Mem.'') at 6-8.
. See In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 230 F.Supp.2d 376 (S.D.N.Y. 2002) ("Ski Train III").
. Pl. Mem. at 9.
. See Ski Train III, 230 F.Supp.2d at 388.
. Gilstrap v. Radianz, Ltd., 443 F.Supp.2d 474, 479 (S.D.N.Y. 2006).
. See Reply Memorandum of Law in Support of Siemens Transportation Systems, Inc.'s Motion to Dismiss ("STS Reply Mem.”) at 7.
. Iragorri, 274 F.3d at 72.
. Id.
. See Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 73 (2d Cir. 2003) (in assessing the degree of deference to accord a plaintiff's choice of forum, courts should look to the plaintiff's "likely motivations in light of all the relevant indications”).
. See STS Reply Mem at 9. The only legitimate reason for choosing a U.S. forum suggested in plaintiffs’ brief is that "[w]histle-blower witnesses have come forward with critical evidence that can only be presented in the United States and others [sic].” PL Mem. at 4. But these "whistleblower witnesses” did not come forward until sometime in 2006, years after plaintiffs first filed these actions in federal court.
. Cf. DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 28 (2d Cir. 2002) (reasonable to presume that foreign plaintiffs invoking United States securities laws would choose United States forum for convenience).
. Cf. Gilstrap, 443 F.Supp.2d at 479.
. STS Reply Mem. at 8.
. See Strategic Value Master Fund, Ltd. v. Cargill Fin. Servs. Corp., 421 F.Supp.2d 741, 762 (S.D.N.Y. 2006) (according less deference to foreign plaintiffs' choice of forum where plaintiffs decided not to sue the real party in interest (an English company with its principal place of business in England), but rather its affiliate (a Delaware corporation), in order to preserve diversity jurisdiction).
. See 28 U.S.C. § 1332(a)(2).
. See Memorandum of Law in Support of Siemens Transportation Systems, Inc.'s Motion to Dismiss ("STS Mem.”) at 7-8. Prior to foreign plaintiffs' filing of these actions, the American plaintiffs had identified Siemens AG, Siemens Corporation and Siemens Austria as parties in interest and named them as defendants in the Habblett cases. In 2002, this Court granted Siemens Austria's motion to dismiss for lack of personal jurisdiction and denied Siemens AG’s motion to dismiss on the same grounds. See Ski Train III, 230 F.Supp.2d at 376.
. See STS Mem. at 8.
. See id.
. Blaimauer 4th Amend. Compl. ¶ 73; Geier 4th Amend. Compl. ¶ 73.
. Compared to its foreign affiliates, STS is only remotely connected to the wrongdoing alleged in plaintiffs' complaints. See STS Mem. at 2 (noting that STS has never been named as a defendant in the Habblett cases). Prior to amending their complaints for a fourth time, plaintiffs had named Siemens AG and Siemens Austria as defendants "doing business as” Siemens Corporation, STS, and a host of other U.S.-based Siemens companies. In their Fourth Amended Complaints, plaintiffs ultimately dropped all Siemens entities save for STS as defendants. See Blaimauer 4th Amend. Compl. ¶¶ 68; 73; Geier 4th Amend. Compl. ¶¶ 67, 72. Additionally, because foreign plaintiffs' claims against Siemens Corporation were recently dismissed with prejudice from a parallel New York state action, their federal court claims against Siemens Corporation would likely be barred as a result of res judicata. See Order, Mitsumoto v. Bosch Rexroth AG, No. 06/105008 (Sup.Ct.N.Y.Co. Dec. 8, 2006).
. See Capital Currency Exch., N.V. v. Nat'l Westminster Bank PLC, 155 F.3d 603, 612 (2d Cir. 1998) ("Because the real parties in interest are foreign corporations, there is not a strong presumption in favor of the plaintiffs' choice of forum.”). See also Pollux Holding Ltd., 329 F.3d at 74 ("[A] plaintiff's choice to initiate suit in the defendant’s home forum ... only merits heightened deference to the extent that the plaintiff and the case possess bona fide connections to, and convenience factors favor, that forum.”). That plaintiffs are using American corporations as a pretext for asserting claims against their foreign affiliates who are the real parties in interest is most obvious as to STS, although Wika argues a similar point in its separately filed motion to dismiss. To wit, Wika argues— unopposed — that even accepting plaintiffs' allegations as true, by the complaints' plain language, the real parties in interest are clearly Wika's foreign affiliates, rather than Wika itself. See Wika Amended Memorandum of Law in Further Support of Wika Instrument Corporation’s Motion to Dismiss at 2-5 (citing, inter alia, Blaimauer 4th Amend. Compl. ¶¶ 114-116, stating that "Wika is the subsidiary, alter ego, actual and/or de facto agent for their German foreign parents Defendant WIKA” and that "Defendant WIKA works together with and provides technology, materials, equipment and services, to other Defendants ... which were involved with The Train, Tunnel, Alpine Center & Valley Station”).
.See Expert Report of Austrian Superior Court Judge Georg E. Kodek ("Kodek Report”), Exhibit ("Ex.”) B to Declaration of Ryan M. Morettini, counsel for STS ("Moretti-niDecl.”) ¶¶ 1.2, 1.3, 1.4.
. See Ski Train III, 230 F.Supp.2d at 387-88 (noting that although plaintiffs raised “serious questions going to the integrity of the criminal investigation in Austria,” it is the integrity of Austria’s judicial system — “not that of the executive branch” — that is important to the forum non conveniens inquiry).
. Indeed, plaintiffs’ counsel has informed the Court that each foreign plaintiff (either individually or as a family) currently has an action pending in an Austrian court against at least one defendant, arising out of the Kaprun disaster. See 6/18/07 Email from Edward D. Fagan, counsel for foreign plaintiffs, to the Court. See also STS Mem. Appendix 2 (listing the thirty-four Blaimauer plaintiffs and seven Geier plaintiffs with actions pending in Austria, as well as the corresponding Austrian case numbers and the names of plaintiffs’ local counsel).
. PL Mem. at 4.
. Id. Plaintiffs do not dispute defendants’ observation that STS, along with other defendant corporations, have foreign affiliates that are much more closely linked to the allegedly tortious conduct spelled out in plaintiffs’ complaints, and that these foreign affiliates would be subject to the jurisdiction of an Austrian court. See STS Reply Mem. at 7-9; Blai-mauer 4th Amend. Compl. ¶ 73 (alleging wrongdoing on the part of “SIEMENS-Transportation” entities "located in Germany and Austria”); Geier 4th Amend. Compl. ¶ 72 (same).
. PI. Mem. at 9.
. STS Mem. at 11.
. See In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, No. 01 MDL 1428, 2003 WL 22909153, at *6 (S.D.N.Y. Dec.9, 2003) ("Ski Train IV”); Foreign Plaintiffs' Motion for Rule 60 and Other Relief as Against GBK, relating to 03 Civ. 8960, 03 Civ. 8961, 06 Civ. 2811 (dated “January 11 & 16, 2007”). GBK is a privately held corporation that has its principal place of business in Kaprun, Aus
. See Pl. Mem. at 3-5. Defendants note that plaintiffs’ opposition sets forth numerous factual allegations in "a series of unelaborated and unsupported bulletpoints” that lack any citation to the record. . STS Reply Mem. at 11.
. See Memorandum of Law of Oesterreich-ische Electrizitaetswirtschafts AG and Ver-bund-Austrian Hydro Power AG in Further Support of their Motion to Quash the Subpoena Duces Tecum and Deposition Notice (filed 2/7/07 in Mitsumoto v. Republic of Austria, 06 Civ. 2811) ("OE-AG Mem.”) at 2-4; Kern v. Oesteireichische Elektrizitaetswirtschaft Ag ("OE-AG”), 178 F.Supp.2d 367 (S.D.N.Y. 2001) (dismissing complaint against OE-AG for lack of subject matter jurisdiction); In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, Nos. 01 MDL 1428, 01 Civ. 7342, 2003 WL 1807148, at *6 (S.D.N.Y. Apr.4, 2003) (dismissing complaint against Verbund-Austrian Hydro Power AG for lack of personal jurisdiction); 12/18/06 Conf. Tr. at 11-14 (plaintiffs' counsel acknowledging that Austrian sovereign entities had yet to be properly served).
. See STS Reply Mem. at 11.
. See STS Mem. at 25.
. Because Austria is not a party to the Hague Convention, plaintiffs’ efforts to obtain evidence from Austria through letters rogato-ry in these cases has proven time consuming and largely unproductive. See 5/7/06 Letter from B. Ha, former counsel for plaintiffs, to the Court (requesting seventeen letters rogato-ry seeking testimony from Austrian wit
. See Exxon Mem. at 17 (citing Expert Report and Declaration of Dr. Georg E. Kodek ("Kodek 2007 Deck"), Ex. A to the Declaration of John F. Tully, counsel for ExxonMobil, in Support of ExxonMobil Corporation’s Motion to Dismiss, at §§ 1.5, 4).
. According to defendants, many of these witnesses were questioned by the Austrian attorneys who represent plaintiffs in their respective individual actions currently pending in Austria. See STS Mem. at 14.
. See Kodek 2007 Dec. §§ 1.5, 4.
. The prosecutor appealed this verdict, but the Court of Appeals in Linz, Austria, affirmed the trial court’s judgment on September 27, 2005. See STS Mem. at 14 (citing Kodek 2007 Deck § 1.5). See also Kodek 2007 Deck § 4 (opining that Austrian courts took "unprecedented efforts ... to find out the true cause of this catastrophe” and that the trial court’s judgment offers a "meticulous” and carefully reasoned analysis of the evidence adduced at the criminal trial, which included fifty thousand pages of documents).
. Exxon Mem. at 16.
. Pl. Mem. at 4.
. See Schwarz Tr.; 4/12/07 Translated Deposition Transcript of Maria Steiner, Ex. 7 to Rooney Deck
. STS Reply Mem. at 12.
. See Ski Train III, 230 F.Supp.2d at 387-88.
. Id. at 388 n. 6.
. Matli v. Strategic Minerals Corp., No. 04 Civ. 5555, 2004 WL 2297373, at *1 (S.D.N.Y. Oct. 12, 2004).
. This private convenience factor weighs particularly heavily in favor of dismissal where the action is brought by foreign plaintiffs. See Piper Aircraft, 454 U.S. at 259, 102 S.Ct. 252 ("The District Court correctly concluded that the problems posed by the inability to implead potential third-party defendants clearly supported holding the trial in Scotland.”); Gulf Oil Corp., 330 U.S. at 511, 67 S.Ct. 839 ("Certainly to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to the court, jury or most litigants.”); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 453 (2d Cir. 1975) ("The inability to implead other parties directly involved in the controversy is a factor which weighs against the retention of jurisdiction in the Southern District of New York.”). See also Strategic Value Master Fund, 421 F.Supp.2d at 770 (defendant's inability to implead foreign third parties favored dismissal); Kilvert v. Tambrands Inc., 906 F.Supp. 790, 796 (S.D.N.Y. 1995) ("A defendant's inability to implead other direct tortfeasors has been held to constitute 'clear prejudice’ and thus to point strongly in favor of dismissal .... [W]hen an action involves foreign plaintiffs ... the argument for dismissal is even stronger.” (citation omitted)).
. Plaintiffs' efforts to add GBK as a party to Blaimauer and Geier persist notwithstanding the fact that if they are successful, they will have destroyed the very diversity on which this Court's jurisdiction relies. See In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 198 F.Supp.2d 420, 426-27 (S.D.N.Y. 2002) (holding that GBK is not an "agent or instrumentality” of Austria and thus does not qualify as a sovereign entity for purposes of ascertaining jurisdiction), aff'd, 67 Fed.Appx. 24 (2d Cir. 2003) (unpublished decision).
. See Kern v. Siemens Corp., 393 F.3d 120, 129 n. 8 (2d Cir. 2004) ("questions as to the enforceability of a judgment if one is obtained” weigh in favor of dismissal on forum non conveniens grounds).
. STS Reply Mem. at 14.
. See Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839 (recognizing the enforceability of a final judgment, if obtained, as a proper forum non conveniens inquiry).
. Piper Aircraft, 454 U.S. at 241 n. 6, 102 S.Ct. 252 (quoting Gulf Oil, 330 U.S. at 509, 67 S.Ct. 839).
. Ski Train III, 230 F.Supp.2d at 390.
. See id. (holding that because Austria was “the locus of the tort” and has a greater interest in the litigation than New York, this Court will “likely be required to apply” Austrian law to plaintiffs’ claims).
. STS Mem. at 15.
. See id.
. See id. (citing Kodek 2007 Decl. § 4).
. Id.
. Piper Aircraft, 454 U.S. at 241 n. 6, 102 S.Ct. 252 (citation omitted).
. PL Mem. at 4.
. Sinochem, 127 S.Ct. at 1190.
. Aside from the fact that Mitsumoto v. The Republic of Austria, No. 06 Civ. 2811, and Stadman v. Austrian Nat’l Tourist Office, No. 07 Civ. 3881, name sovereign entities (amongst others) as defendants, they are so substantially similar to Blaimauer, Geier and Mitsumoto v. Robert Bosch — i.e., all five actions were filed solely on behalf of foreign plaintiffs and arise out of the November 11, 2000 ski train fire in Kaprun, Austria — that a nearly identical forum non conveniens analysis applies, and dictates the same result.
. Because these cases are dismissed on the ground of forum non conveniens, the following motions are now moot: (1) Bartlett, Mc-Donough, Bastone & Monaghan LLP’s Motion to Quash Subpoena Served on Behalf of Foreign Plaintiffs (Docket No. 138; 03 Civ. 8960); (2) Omniglow's Motion to Dismiss Pursuant to Fed.R.Civ.P. 56 for Lack of Standing (Docket No. 121; 03 Civ. 8960); (3) Foreign Plaintiffs’ Motion to Disqualify and Sanction E. Gordon Haesloop, Esq. and Bartlett, McDonough, Bastone & Monaghan LLP (Docket Nos. 25, 29, 30; 07 Civ. 935); (4) St. Paul Travelers’ Motion to Quash Subpoena Served on Behalf of Foreign Plaintiffs (Docket Nos. 45, 46; 06 Civ. 2811); and (5) Foreign Plaintiffs’ Motion for Rule 60 and Other Relief as Against GBK (Docket No. 48; 06 Civ. 2811). Additionally, several defendants have joined in Bosch Rexroth’s Motion for Sanctions Under 28 U.S.C. § 1927 and to Disqualify Edward D. Fagan, Esq. as Plaintiffs’ Counsel (Docket No. 159; 03 Civ. 8960). Although the disqualification portion of this motion is now moot, the Court will address defendants’ request for sanctions in a separate Order.
Reference
- Full Case Name
- In re SKI TRAIN FIRE IN KAPRUN AUSTRIA ON NOVEMBER 11, 2000. This document relates to the following actions: Johann Blaimauer v. Omniglow Corporation, Defendants Herman Geier v. Omniglow Corporation, Defendants Nanae Mitsumoto v. The Republic of Austria, Defendants Nanae Mitsumoto v. Robert Bosch Corporation, Defendants Joop H. Stadman v. Austrian National Tourist Office Inc.
- Cited By
- 1 case
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- Published