Ponder v. PropheteMEMORANDUM IN SUPPORT of 82 MOTION to Dismiss for Forum Non ConveninesD. Kan.February 12, 2019Page 1 of 16 CASE NO. 2:16-CV-02376-CM-GLR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS BRIAN LAMAR PONDER, Plaintiff, v. DONALD SONY PROPHETE, Defendant. CASE NO. 2:16-CV-02376-CM-GLR DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR FORUM NON CONVENIENS Defendant Donald Sony Prophete (“Defendant”), by and through his undersigned counsel, respectfully submits this Memorandum in Support of his Motion to Dismiss for Forum Non Conveniens. The Dominican Republic is the appropriate forum in which this case should be heard. Accordingly, Defendant moves that this case be dismissed under the doctrine of forum non conveniens and tried in the Dominican Republic I. FACTUAL BACKGROUND AND NATURE OF MATTER Plaintiff seeks damages for tort claims of battery, assault, and false imprisonment arising out of an incident that exclusively occurred at a villa in the Dominican Republic (Dkt. 80 at 2-3). While the parties dispute the exact details of what happened at the villa, it is undisputed that all of Plaintiff’s “alleged torts were committed in the Dominican Republic.” (Id. at 4) (this Court recognizing the events occurred in the Dominican Republic); see also Ponder v. Prophete, No. 16-cv-1043, Order (Dkt. 24) (S.D.N.Y. Apr. 15, 2016) (“Plaintiff has further clarified that the alleged incident occurred in the Dominican Republic”). Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 1 of 16 Page 2 of 16 CASE NO. 2:16-CV-02376-CM-GLR Each and every one of the percipient events at issue here occurred in the Dominican Republic. The evidence and documents are all in the Dominican Republic. The key and unbiased witnesses to the incident are residents of the Dominican Republic. (Dkt. 80 at 4). Dominican Republic police and Dominican Republic attorneys were at the scene of the incident and witnessed the events that transpired on that day. (Id.). Additionally, a police report was filed with Dominican authorities. (Id. at 3). There may also be other documentary evidence, such as videos, notes, case files, and other documents that are housed in the Dominican Republic. Plaintiff originally filed suit in the Southern District of New York. The case was eventually transferred to this Court because “there [was] no basis for venue in the Southern District of New York” and because the transferring court surmised that “Kansas [is] the appropriate federal court to hear this action.” Ponder v. Prophete, No. 16-cv-1043, Order (Dkt. 24) (S.D.N.Y. Apr. 15, 2016). However, given the applicability of Dominican Republic law and the location of documents and witnesses outside of this Court’s subpoena power, the appropriate forum is the Dominican Republic. II. QUESTION PRESENTED Should the Court dismiss this case under the doctrine of forum non conveniens and allow trial of this matter in the Dominican Republic? III. ARGUMENT The doctrine of forum non conveniens provides trial courts the ability to decline jurisdiction in favor of another, more appropriate venue. Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 429 (2007). In determining whether to dismiss a case for forum non conveniens, courts assess “the convenience to the parties and the practical difficulties that Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 2 of 16 Page 3 of 16 CASE NO. 2:16-CV-02376-CM-GLR can attend the adjudication of a dispute in a certain locality.” Sinochem Int’l Co., 549 U.S. at 429. While there is a presumption that the forum a resident-plaintiff chooses is appropriate, that presumption is given less weight when a plaintiff voluntarily interacts with the alternative forum. See Atteberry v. Barclays Bank PLC, 159 B.R. 1, 7 (D. Kan. 1993) (emphasis added). Several other trial courts have granted similar motions to dismiss for forum non conviens made under analogous circumstances. See, e.g., Goldstein v. Hard Rock Café Int’l (USA), Inc., No. 6:12-cv-148, 2012 WL 13035390, at *7 (M.D. Fla. 2012) (granting defendant’s motion to dismiss because “Dominican Republic is an adequate and available alternative forum, the private interest factors weigh in favor of dismissal such that the presumption in favor of Plaintiffs' initial choice of forum is outweighed, and the public interest factors weigh in favor of dismissal”); Corporacion Tim v. Schumacher, 418 F. Supp. 2d 529, 536 (S.D.N.Y. 2006) (determining the Dominican Republic is an adequate alternative forum and granting defendant’s motion to dismiss on the grounds of forum non conveniens); Banco Mercantil, S.A. v. Arencibia, 927 F. Supp. 565, 568 (D.P.R. 1996) (holding that “the Dominican Republic is an adequate, alternative forum and that it would be far more convenient to litigate the dispute in the Dominican Republic forum”); Dominguez v. Pyrgia Shipping Corp., No. 98 Civ. 529, 1999 WL 438477, at *4 (E.D. La. June 28, 1999). This Court should reach the same conclusion. IV. THIS COURT SHOULD DISMISS THIS CASE UNDER THE DOCTRINE OF FORUM NON CONVENIENS. Because the alternative forum Defendant advances here is abroad, the common-law doctrine of forum non conveniens applies. In re Cessna 208 Series Aircraft Prods. Liab. Litig., Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 3 of 16 Page 4 of 16 CASE NO. 2:16-CV-02376-CM-GLR 546 F. Supp. 2d 1191, 1194–95 (D. Kan. 2008) (citing Sinochem, 549 U.S. at 430).1 Under that doctrine, the two threshold requirements for dismissal are: First, there must be an adequate alternative forum where the defendant is amenable to process. . . . Second, the court must confirm that foreign law is applicable . . . because forum non conveniens is improper if foreign law is not applicable and domestic law controls[.] Archangel Diamond Corp. Liquidating Tr. v. OAO Lukoil, 812 F.3d 799, 804 (10th Cir. 2016) (quotations omitted); see also In re Cessna, 546 F. Supp. 2d at 1195. Once the threshold requirements are met, “the Court goes on to weigh the private and public interests bearing on the forum non conveniens decision.” In re Cessna, 546 F. Supp. 2d at 1195. As explained below, both threshold requirements for dismissal are met, and all of the public and private interest factors favor dismissal. A. The Dominican Republic Is An Adequate Alternative Forum. “An alternative forum is adequate if it provides for litigation of the subject matter of the dispute and potentially offers redress for plaintiffs' injuries.” King v. Cessna Aircraft Co., 562 F.3d 1374, 1382 (11th Cir. 2009). The bar for finding the alternative forum to be adequate is low: courts recognize the sovereignty and capabilities of foreign judicial systems, and a forum is inadequate only where the remedies provided by it are “so clearly inadequate . . . that it is no remedy at all.” Gschwind v. Cessna Aircraft Co., 161 F.3d 602, 607 (10th Cir. 1998) (quotations omitted); Corporacion Tim, 418 F. Supp. 2d at 532 (quoting Jhirad v. Ferrandina, 536 F.2d 478, 1 A motion to dismiss for forum non conveniens can be made throughout the lifespan of a case, and thus, there is no issue of waiver. Since forum non conveniens is a discretionary doctrine, it is not waived when a party does not assert it in its initial responsive pleading. Yavuz v. 61 MM, Ltd., 576 F.3d 1166, 1173 (10th Cir. 2009). The inconvenience of litigating in this forum has only recently become apparent to Defendant. As this Court recently observed, Dominican Republic law applies to the claims in this case. Moreover, as Defendant now prepares his case for trial, it is apparent that the limitations of this Court’s subpoena power will impede his access to trial witnesses and documents under the exclusive jurisdiction of the Dominican Republic. Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 4 of 16 Page 5 of 16 CASE NO. 2:16-CV-02376-CM-GLR 484-85 (2d Cir. 1976) (“It is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another sovereign nation.”)). Significantly, “a foreign venue may be adequate even if it does not have the same procedural safeguards or the identical remedies available in the United States.” Yavuz, 576 F. 3d at 1177 (“[E]ven though certain claims, such as [the plaintiff’s] RICO claim, may not be available in Swiss courts, Switzerland may still be an adequate forum.”); see also Gschwind, 161 F.3d at 607 (“[T]he remedy provided by the alternate forum need not be the same as that provided by the American court[.]”); OAO Lukoil, 812 F.3d at 804 (“[T]he availability of an adequate alternative forum does not depend on the existence of the identical cause of action in the other forum, nor on identical remedies.”) (quotations omitted). 1. Plaintiff Can Litigate His Claims In The Dominican Republic. The Dominican Republic provides for litigation of Plaintiff’s claims and redress for his injuries. In determining whether a plaintiff can litigate his claims in the forum, courts look to whether the plaintiff can serve process on the defendant and whether the plaintiff can pursue his claims in the alternative forum. Fireman’s Fund Ins. Co. v. Thyssen Mining Constr. of Can., 703 F.3d 488, 495 (10th Cir. 2012). There is nothing here to bar Plaintiff from litigating his claims in the Dominican Republic. The Defendant agrees to accept service of process if this action is dismissed and refiled in a Dominican Republic court. (Def.’s Stipulation ¶¶1-2, attached hereto as Exhibit 2). Therefore, the service of process requirement is satisfied. Fireman’s Fund Ins. Co., 703 F.3d at 495; accord Gschwind, 161 F.3d at 605–06 (10th Cir. 1998).2 Furthermore, as explained by Ms. 2 To the extent it may be a concern of Plaintiff or this Court, Defendant also agrees to waive any defense based on the statute of limitations. (Def’s Stipulation ¶2). Waivers of the statute of limitations are allowed under the law of the Dominican Republic and do not curtail or otherwise negatively affect a plaintiff’s claim. (Decl. Familia ¶¶18-20). Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 5 of 16 Page 6 of 16 CASE NO. 2:16-CV-02376-CM-GLR Familia—an attorney who is licensed to practice law in the Dominican Republic, has practiced law in the country for over fifteen years, and is authorized to appear before Dominican courts— Plaintiff can litigate his claims in the Dominican Republic. Decl. of Elueteria Jenny Familia Brito (“Decl. Familia”) ¶¶ 4, 24, 30-31, attached hereto as Exhibit 1, (noting, “[o]nce the court has subject matter jurisdiction over the case and there are no questions as to venue, any party, national or foreign, can be brought before the court by simply serving them with a copy of the complaint wherever they may be located” and that “Plaintiff could bring his claims before the courts of the Dominican Republic under several theories of civil liability”). Plaintiff can litigate his claims in the Dominican Republic. See generally Fireman’s Fund, 703 F.3d at 496. 2. The Dominican Republic Provides Redress for Plaintiff’s Injuries. The Court must next analyze whether the Dominican judicial system is “so clearly inadequate” that it would not provide a remedy for the Plaintiff “at all.” Gschwind, 161 F.3d at 607 (quotations omitted). Several other trial courts have already determined the Dominican Republic is an adequate alternative forum that provides redress in cases involving similar tort and business issues, which is given great weight in this Court’s determination whether the alternative forum is adequate. See Yavuz, 576 F. 3d at 1177; see also, e.g., Goldstein, 2012 WL 13035390, at *3 (“[I]ndeed, the Dominican Republic is an available alternative forum.”); Gianocostas, 19 Mass. L. Rep. at 42 (concluding “that the Dominican Republic is available as an adequate alternative forum” ); Corporacion Tim, 418 F. Supp. 2d at 536; Banco Mercantil, 927 F. Supp. at 568 (finding the Dominican Republic to be an adequate forum where plaintiff’s claim was recognized under Dominican law and rejecting claim that the Dominican judicial system is “corrupt”); Dominguez, 1999 WL 438477, at *4. Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 6 of 16 Page 7 of 16 CASE NO. 2:16-CV-02376-CM-GLR As these other courts have found, the Dominican Republic is an adequate alternative forum for Plaintiff’s claims. See supra at 2-3 (collecting cases). The Dominican Republic was “founded as a democratic nation in 1844[;]” is a “founding member of the United Nations and a member of the Organization of American States[;]” has a Constitution which, along with international conventions, provide litigants with various freedoms and rights. (Decl. Familia ¶¶ 5-6). Like the United States, the Dominican Republic has an intricate judicial system: there is a Judicial Branch that oversees interpretation of laws and a Constitutional Tribunal to determine the constitutionality of the actions of its branches of government; “members of the Supreme Court of Justice are appointed by the National Judiciary Council (Consejo Nacional de la Magistratura) after public hearings are held, while the members of the lower courts are appointed by the Council of the Judicial Branch (Consejo del Poder Judicial)[;]” it “has a three-tiered judicial system” with thirty-two districts; litigants have the absolute right to appeal decisions of the lower courts to various Courts of Appeal with are devided into “11 Judicial Departments[;]” and decisions are subject to final review by the Supreme Court of Justice. (Id. ¶¶ 7–12). Courts in the Dominican Republic have both subject matter and personal jurisdiction over the Plaintiff and Defendant and afford the parties the tools needed to conduct discovery: the Dominican Civil Procedure Code “allows for the parties to a lawsuit to conduct production of evidence during the discussion of the merits, including physical evidence, visits to any site that has any significance with the litigation, and examination of lay and expert witnesses upon which the parties intend to rely.” (Id. ¶¶ 22-25). Additionally, “Dominican courts have subpoena powers over witnesses and physical evidence relevant to the resolution of the claims raised in a complaint.” (Id. ¶ 26); compare with Jones v. FC USA, Inc., No. 17-1126, 2017 U.S. Dist. LEXIS 187734, at *6 (E.D. Pa. Nov. 13, 2017) (“[T]hese witnesses in the Dominican Republic Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 7 of 16 Page 8 of 16 CASE NO. 2:16-CV-02376-CM-GLR are located outside of the Court’s subpoena power as provided in Federal Rule of Civil Procedure 45(c)(1)(A), so the Court will not be able to compel their testimony if they are unwilling to come to [the domestic forum] for trial.”). Dominican courts would also give both parties the opportunity to be heard, to present evidence and witnesses, and to cross-examine witnesses. (Decl. Familia ¶¶21, 25). The Dominican Republic’s intricate judicial system recognizes all of Plaintiff’s claims for relief: the Dominican Republic has multiple statutes, including the Civil Code and Penal Code, which provide parties with causes of action for all intentional torts, including assault, battery, and false imprisonment. (Id. ¶¶13–14); see also D.R. Civ. Code Art. 1382; Pallano v. AES Corp., Nos. N09C-11-021 JRJ, N10C-04-054 JRJ, 2011 Del. Super. LEXIS 313, at *13-18 n.39, *43 (Super. Ct. July 15, 2011) (noting that the Dominican Republic recognizes claims of assault and battery under Article 1382 of the Dominican Civil Code and Article 209 of the Dominican Penal Code); Gianocostas v. RIU Hotels, S.A., 2011 Mass. Super. LEXIS 236, at *12-13 (June 27, 2011) (discussing that “both attorneys in the Dominican Republic state that the Dominican Republic recognizes and permits litigation on the subject matter in dispute” and that “Articles 1382 through 1384 of the Code provide the foundation for actions for damages to redress tortious conduct”). Lastly, claims similar to those of the Plaintiff are commonly brought before Dominican courts, and there is no cap on the amount of damages the Plaintiff could recover. (Decl. Familia ¶¶15, 27). The judgment rendered would also be valid and enforceable: “A judgment rendered by a court in the Dominican Republic is of mandatory execution and fully enforceable in the Dominican Republic and abroad through judicial cooperation and validation, once all available Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 8 of 16 Page 9 of 16 CASE NO. 2:16-CV-02376-CM-GLR challenges against the judgment have been exercised or the term for such challenge has expired.” (Id. ¶28). In sum, Plaintiff is able to fully and adequately litigate all of his claims in the Dominican Republic. As several other trial courts have found, the Dominican Republic, a stable democratic government, has a multi-leveled judicial system with jurisdiction over the Plaintiff’s claim, subpoena power over witnesses and documents, and would provide both parties with constitutional and procedural protections. The Plaintiff’s claims would be recognized by Dominican Republic law with no caps on damages. See Yavuz, 576 F. 3d at 1177. Therefore, the Dominican Republic is an available and adequate forum for Plaintiff’s claims, and the first threshold element of the forum non conveniens analysis is met. B. Dominican Republic Law Applies to This Case. The second question under the forum non conveniens analysis is whether foreign law applies to the case. See OAO Lukoil, 812 F.3d at 804. As discussed in detail in Defendant’s Motion for Application of Dominican Republic Law, Dominican Republic law applies to this case. Under the applicable Kansas choice-of-law rules, the law of the lex loci delicti, the location of the wrongdoing, applies to tort claims. See Phil. Am. Life Ins. V. Raytheon Aircraft Co., 252 F. Supp. 2d 1137, 1142 (D. Kan. 2003); Raskin v. Allison, 30 Kan. App. 2d 1240, 1242 (Kan. App. 2002). Here, Plaintiff seeks damages for claims arising from an incident that occurred in the Dominican Republic, and, as other courts have held, Dominican Republic law applies to those claims. See generally Def.’s Mot. For Application of Dominican Republic Law. Therefore, the threshold forum non conveniens requirements have been met, as (1) the Dominican Republic is an adequate alternative forum for the Plaintiff; and (2) the law the Dominican Republic applies to this case. See OAO Lukoil, 812 F.3d at 804. Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 9 of 16 Page 10 of 16 CASE NO. 2:16-CV-02376-CM-GLR C. Both the Public and Private Interest Factors Weigh in Favor of Dismissal. The Court next weighs the private and public interest factors to determine whether they justify dismissal. In re Cessna, 546 F. Supp. 2d at 1195. If the factors weigh towards dismissal, dismissal for forum non conveniens is appropriate. Id. It is not necessary for both sets of factors to favor dismissal, however: it is appropriate for a court to dismiss a case where, for example, private factors weigh in favor of retaining the case, while the public factors weigh heavily in favor of dismissal. See OAO Lukoil, 812 F.3d at 809 (affirming trial court’s dismissal where “the public interest factors heavily favored [the movant] while the private interest factors slightly favored [the nonmovant]”). Here, as several other trial courts have found, all the factors weigh in favor of dismissal. See, e.g., Goldstein v. Hard Rock Café Int’l (USA), Inc., 2012 WL 13035390, at *7 (determining both the private and public interest factors weigh in favor of dismissal under analogous facts); Corporacion Tim, 418 F. Supp. 2d 529 at 536-37 (finding the “private and public interest factors weigh heavily in favor of dismissal of this action”); Banco Mercantil, S.A., 927 F. Supp. at 568 (holding that the balance of private and public interest factors “favors the dismissal of the case and “that the Dominican Republic forum is more convenient to resolve this dispute”); Dominguez v. Pyrgia Shipping Corp, 1999 WL 438477, at *4. 1. Private Interest Factors The relevant private interest factors for whether a court should dismiss a case for forum non conveniens are: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for compelling attendance of witnesses; (3) cost of obtaining attendance of willing non-party witnesses; (4) possibility of a view of the premises, if appropriate; and (5) all other practical problems that make trial of the case easy, expeditious, and inexpensive. Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 10 of 16 Page 11 of 16 CASE NO. 2:16-CV-02376-CM-GLR OAO Lukoil, 812 F.3d at 806; see also Yavuz, 576 F.3d at 1180. Every single one of these private interest factors weighs in favor of dismissal. Dominican Republic courts will have easier access to sources of proof in this case, and in some instances the only access to sources of proof. The premises at issue—the villa—is located in the Dominican Republic. Moreover, Dominican Republic courts can compel attendance of local witnesses and production of documents housed in the Dominican Republic, while this Court can do neither. (Decl. Familia ¶ 26); see Jones, 2017 U.S. Dist. LEXIS 187734, at *6 (“[T]hese witnesses in the Dominican Republic are located outside of the Court's subpoena power as provided in Federal Rule of Civil Procedure 45(c)(1)(A), so the Court will not be able to compel their testimony if they are unwilling to come to [the domestic forum] for trial.”); Gianocostas, 19 Mass. L. Rep. at 42 (establishing a Dominican court cannot compel “a witness in the Dominican Republic to give sworn testimony for use in a United States action”); Corporacion Tim, 418 F. Supp. 2d at 534–35 (“Insofar as these events occurred in the Dominican Republic, access to the necessary witnesses whose live or deposition testimony would be necessary, and any related documentary evidence, are likely to be located primarily in the Dominican Republic, and thus beyond the reach of this Court's power to compel production.”). The lack of this forum’s authority to compel documents and witnesses located in the Dominican Republic will present many practical difficulties in this case. Plaintiff’s assault, battery, and false imprisonment allegations occurred in a villa in the Dominican Republic. (See Dkt. 80 at 2). The only witnesses without a personal or professional relationship with the parties are Dominican Republic police and Dominican Republic attorneys, who were present at the time. (Id.) They are key witnesses who do not fall under this Court’s subpoena power. The Plaintiff Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 11 of 16 Page 12 of 16 CASE NO. 2:16-CV-02376-CM-GLR also filed a police report against the Defendant with local Dominican Republic police, meaning there are additional witnesses and documents which will be needed in order to test the veracity of the Plaintiff’s assertions. (Id. at 3). Even if the witnesses wish to appear and testify voluntarily, the associated costs for securing their testimony in the United States, would be substantial. A court may also dismiss the case based on “considerations affecting the court’s own administrative and legal problems,” should such issues arise. OAO Lukoil, 812 F.3d at 806 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981)). This District, having no interest in the affairs of the Dominican Republic or its laws, would be tasked with accurately interpreting them. This could require the hiring of several expert(s) on Dominican Republic law, including separate experts for each party to the litigation and a third who could serve as the court’s neutral expert if desired by the Court. See, e.g. Pallano, 2011 Del. Super. LEXIS 313 (the court appointing an “independent expert on Dominican law” to assist it in understanding Dominican Republic law). It would also require the Court to apply that law to the facts of this case, and, absent the Dominican Republic witnesses, the facts cannot truly be fleshed out. The private interest factors heavily weigh in the Defendant’s favor and justify dismissal. 2. Public Interest Factors In addition to the private interest factors, courts look to public interest factors as well. Courts analyze the following public interest factors in deciding whether to dismiss a case for forum non conveniens: (1) administrative difficulties of the courts with congested dockets which can be caused by cases not being filed at their place of origin; (2) the burden of jury duty on members of a community with no connection to the litigation; (3) the local interest in having localized controversies decided at home; and (4) the appropriateness of having diversity cases tried in a forum that is familiar with the governing law. Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 12 of 16 Page 13 of 16 CASE NO. 2:16-CV-02376-CM-GLR OAO Lukoil, 812 F.3d at 808 (quoting Gschwind, 161 F.3d at 606). Again, analysis of each of these factors weighs in favor of dismissal. “[T]he court system of the Dominican Republic is not particularly congested;” and, lawsuits are often resolved at an even faster pace than in the United States. (Decl. Familia ¶ 29); see also Corporacion Tim, 418 F. Supp. 2d at 536 (“[T]here is no indication that courts in the Dominican Republic are any more congested than the busy courts in this District.”). Therefore, Dominican courts would have no trouble interpreting their country’s laws and resolving this case. This Court, however, would be presented with many administrative difficulties, as its sister court noted in Goldstein: [T]he law of the Dominican Republic would apply in this case. If this case proceeds in this Court, applying the law of the Dominican Republic will present significant problems and expenses for the Court and the parties. Not only does this case call for the Court to apply foreign law, it calls for the Court to apply foreign law that is in a foreign language. The Court would have to rely on expert witnesses to assist in resolving legal issues. Because application of the law of the Dominican Republic will cause substantial difficulty and expense for both the Court and all parties, this factor weighs in favor of dismissal. Goldstein v. Hard Rock Café Int’l (USA), Inc., 2012 WL 13935390, at *8 (M.D. Fla. Sep. 12, 2012) (granting dismissal for forum non conveniens). This case also would burden members of the community in Kansas, who have little to no connection to this case. See Jones, 2017 U.S. Dist. LEXIS 187734, at *12-13 (“In contrast, Pennsylvania has little or no interest in resolving a dispute concerning a Maryland citizen who was allegedly assaulted in the Dominican Republic. Furthermore, because Pennsylvania has little or no interest in this dispute, it would be unfair to burden its citizens with jury duty in this case.”). Similar to Jones, this case is about a New Jersey citizen who was allegedly harmed by a then citizen of Missouri in the Dominican Republic, and this dispute is governed by the law of Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 13 of 16 Page 14 of 16 CASE NO. 2:16-CV-02376-CM-GLR the Dominican Republic. (Compl. ¶¶ 4–5, Dkt. 80 at 4, supra Part II.B.3). It would no doubt burden residents of Kansas to be compelled to perform jury duty for an incident that occurred completely outside its borders, between non-resident parties, and governed by laws of a foreign jurisdiction. The second public interest factor weighs heavily in favor of dismissal. As to the third factor, and especially important to the Court’s inquiry, the Dominican Republic has a strong interest in resolving disputes that occur within its borders, and a strong interest in interpreting its Civil Code, and a strong interest in resolving a lawsuit about allegedly tortious conduct that occurred entirely within Dominican Republic borders. See Jones, 2017 U.S. Dist. LEXIS 187734, at *12 (“The Dominican Republic has a stronger interest than Pennsylvania as a forum for this case because it has a compelling interest in resolving disputes arising out of torts occurring within its borders.”); Corporacion Tim, 418 F. Supp. 2d at 533 (“[T]he underlying events occurred in the Dominican Republic, which has the greatest interest in the application of its law under these circumstances involving property and events predominantly in the Dominican Republic . . . .”). The alleged dispute that gave rise to this action occurred in a villa in the Dominican Republic, is governed by Dominican Republic law, and arose from the Plaintiff’s assertion that his client owned the villa due to Dominican Republic law. (Dkt. 80, pp. 2–3). Issues implicating the Dominican Republic’s tort law other issues of Dominican law, should be fleshed out by that country’s courts. As to the fourth factor, in the Dominican Republic, tort law is derived from the French Civil Code, which it adopted in 1884. See Banco Mercantil, 927 F. Supp. at 569 (“[T]he Dominican Republic adopted the French Civil Code in 1884.”). Since all intentional torts are governed by one provision, D.R. Civ. Code Art. 1382, a true application of the law to this case would require an in-depth review of how Dominican courts have interpreted Article 1382 within Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 14 of 16 Page 15 of 16 CASE NO. 2:16-CV-02376-CM-GLR the context of similar cases, all of which were written in Spanish. See Pallano v. AES Corp., 2011 Del. Super. LEXIS 313, at *13-18 n.39, *43; see also Gianocostas, 2011 Mass. Super. LEXIS 236, at *12-13. The issue is one of more than translation, as other courts have found that foreign courts are best suited to interpret the rulings of their own sovereign countries. As one court has stated: “the Dominican Republic courts are more conversant and familiar with the Dominican Republic Civil Code and regulations governing” their laws. . . . The familiarity of the Dominican Republic courts with the Dominican Republic law governing this dispute is an additional factor counseling in favor of dismissal. Banco Mercantil, 927 F. Supp. at 569; see also Gianocostas, 2011 Mass. Super. LEXIS 236, at *26–27 (noting that Dominican law governed the dispute, stating, “[T]he need to apply foreign law favors dismissal”). Therefore, the fourth and final factor also favors dismissal. As noted above, cases that arise from actions that occurred entirely within the Dominican Republic, to which its laws apply, should be adjudicated there. See supra at 2-3 (collecting cases). The Dominican Republic has the resources to interpret its laws and is better suited to do so. Therefore, the public interests also weigh heavily in Defendant’s favor, and this Court should dismiss this case for forum non conveniens. CONCLUSION The Dominican Republic is an adequate and available forum for the Plaintiff as several sister courts have found in similar situations. Because Plaintiff voluntarily vacationed in the Dominican Republic, the Court can ignore deference to his choice of forum. Atteberry v. Barclays Bank PLC, 159 B.R. 1, 7 (D. Kan. 1993). Plaintiff is able to bring all of his tort claims in the Dominican Republic without issue. Because the Plaintiff’s claims arise out of a dispute that occurred entirely within the Dominican Republic, implicates witnesses that are not subject to Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 15 of 16 Page 16 of 16 CASE NO. 2:16-CV-02376-CM-GLR this Court’s subpoena power, and would present various difficulties in interpreting the law of the Dominican Republic, this Court should dismiss this case for forum non conveniens. MANNING, GROSS + MASSENBURG, LLP By: /s/ Daniel B. Rousseau Daniel B. Rousseau, #78627 1405 Green Mount Road, Suite 400 O’Fallon, IL 62269 Telephone: (618) 277-5500 Facsimile: (618) 277-6334 Email: drousseau@mgmlaw.com ATTORNEY FOR DEFENDANT DONALD SONY PROPHETE M. Elizabeth O’Neill NC Bar No. 24039348 Pro Hac Vice Admitted Womble Bond Dickinson (US) LLP One Wells Fargo Center, Suite 3500 301 South College Street Charlotte, NC 28202-6037 Telephone: (704) 350-6310 Email: Elizabeth.ONeill@wbd-us.com ATTORNEY FOR DEFENDANT DONALD SONY PROPHETE CERTIFICATE OF SERVICE I certify that I have served a copy of the foregoing Defendant’s Memorandum in Support of Motion to Dismiss for Forum Non Conveniens via this Court’s CM/ECF system, which effected service through Notice of Electronic Filing to all counsel of record as follows: Brian L. Ponder, Esq. Brian Ponder, LLP 200 Park Avenue, Suite 1700 New York, NY 10166 Dated this 12th day of February, 2019. By: /s/ Daniel B. Rousseau ATTORNEY FOR DEFENDANT DONALD SONY PROPHETE Case 2:16-cv-02376-CM Document 83 Filed 02/12/19 Page 16 of 16
