under the FSIA, it need not reach plaintiffs' arguments that defendant should be denied immunity due to the third clause and defendant's alleged waiver of immunity. Rather, the court will next consider defendant's motion to dismiss pursuant to the common law doctrine of forum non conveniens.
FORUM NON CONVENIENS
Dismissal pursuant to forum non conveniens is a determination committed to the sound discretion of the trial court. Piper Aircraft v. Reyno, 454 U.S. 235, 257, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). A plaintiff's choice of forum is ordinarily entitled to great deference, particularly when the plaintiff has chosen its home forum. Id. at 255. For purposes of this motion, the court finds that plaintiff is an American corporation, and has thus chosen its home forum. Defendant makes the unsupported assertion that Bosch is a German corporation, but Bosch has provided affidavit testimony that Bosch was incorporated in the United States and is licensed to do business in the State of Illinois.
To overcome plaintiff's forum choice, defendant must demonstrate that the other relevant factors weigh heavily in favor of dismissal in favor of an alternative forum. Id. Those factors are the private interests of the litigants, the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, costs of obtaining attendance of unwilling witnesses, the fairness of the trial, and the enforceability of any judgment. Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508, 91 L. Ed. 1055, 67 S. Ct. 839 (1947).
Defendant compares the forum of Illinois to the alternative forum of "Germany or France." Yet, these are two separate fora, and to convince this court that dismissal on the grounds of forum non conveniens is appropriate, defendant must point to a specific alternative forum which is more appropriate. The court assumes that defendant suggests Germany is the most appropriate forum, as most of its arguments regarding the location of evidence relate to Germany. The court will thus consider whether defendant has demonstrated that the remaining factors weigh heavily in favor of Germany as the most appropriate forum.
The great expense of intercontinental travel, the potential unavailability of compulsory service of process, and the difficulties created by language barriers make the location of witnesses a crucial factor in this case. The court finds that defendants have failed to demonstrate that the location of witnesses favors dismissal.
Defendant points out that the product was damaged in Germany in a trucking accident and witnesses to that accident are located in Germany. However, in a pretrial conference, counsel for defendants admitted that any negligence in that accident is not an issue in this case.
Defendant is apparently liable for any damage to the product, regardless of the details of the accident. As a result, witnesses to the accident are unlikely to be called in this case.
Defendant argues that the contract at issue was negotiated and executed in Germany, and therefore witnesses to the contract are probably located in Germany. This lends some support to defendant's argument. However, the weight given to this consideration is lessened by the fact that the witnesses on this issue are party witnesses.
Counsel for defendant stated in pretrial conference that whether Bosch properly boxed the product will be an issue. The product was boxed in Germany, and this fact weighs in favor of Germany as the appropriate forum. On the other hand, witnesses as to the value of the product and the extent of damage to the product at the time of delivery are probably located in the United States. Consequently, the "location of witnesses" factor does not support transfer.
Turning to other factors, the court finds that the relative ease of access to documents does not favor transfer. The air waybill at issue is in English, and no other relevant documents have been discussed in the memoranda.
Defendant argues that dismissal is appropriate because to the extent that the Warsaw Convention is not applicable, French or German law would govern this case. However, it appears that the Warsaw Convention may supply all the relevant law for this case. Moreover, even if "French or German" law were applicable, defendant has not specified which would apply. If French law were applicable, the applicable law would be foreign to either proposed forum. Therefore, the choice of law factor has not been shown to favor dismissal.
Defendant argues that the "fairness of the trial" factor favors dismissal, because defendant wishes to bring a third party action against the trucking company, and may be unable to do so if this action is tried in the United States. Yet, defendant could bring a separate action in Europe, and has presented no evidence that such a lawsuit would be unduly duplicative of this action. On the contrary, it would seem that the negligence of the trucking company would be a central issue in that action, an issue not relevant to this action.
The remaining factors do not favor dismissal. Defendant urges the court to consider the congested docket of this district, yet has failed to provide evidence that Germany's docket is less congested. Furthermore, the parties agree that the "enforceability of any judgment" factor favors neither forum. Finally, the fact that apparently neither party is German has some weight against selection of Germany as the most appropriate forum.
In sum, the Federal Sovereign Immunities Act does not confer immunity on defendant Air France in this case. Moreover, defendant has failed to demonstrate that a significantly more appropriate forum for litigation of this matter exists. Therefore, the motion to dismiss is denied.
IT IS SO ORDERED.
DATED: May 5, 1989