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ALEXANDER PROUDFOOT, PLC v. FEDERAL INS. CO.

July 27, 1994

ALEXANDER PROUDFOOT, Plc, ALEXANDER PROUDFOOT (U.K.) LTD. and ALEXANDER PROUDFOOT PRODUCTIVITY MANAGEMENT EUROPE S.A., Plaintiffs,
v.
FEDERAL INSURANCE COMPANY, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiffs Alexander Proudfoot Plc ("Proudfoot Plc"), Alexander Proudfoot (U.K.) Ltd. ("Proudfoot UK"), and Alexander Proudfoot Productivity Management Europe S.A. ("APPME"), collectively referred to herein as "Proudfoot," bring this action for declaratory relief and damages against defendant Federal Insurance Co. This suit was originally filed in the United States District Court for the District of New Jersey. There, defendant moved to dismiss for forum non conveniens, or, in the alternative, to transfer to this court pursuant to 28 U.S.C. § 1404. The court denied Federal's motion to dismiss, but granted the motion to transfer. Presently before this court is Federal's renewed motion to dismiss this action for forum non conveniens. For the reasons set forth below, Federal's motion is granted.

 I. Background

 Plaintiffs Proudfoot Plc and its subsidiary, Proudfoot UK, are corporations organized under the laws of the United Kingdom with their principal places of business in England. Plaintiff APPME, another Proudfoot Plc subsidiary, is organized under the laws of, and has its principal place of business in, Belgium. Defendant Federal is incorporated under the laws of Indiana, with its principal place of business in New Jersey. It is authorized to conduct business in Illinois and England.

 On October 4, 1991, Federal issued Crime Insurance Policy No. 8120-03-69-C to Proudfoot following negotiations in Chicago, Illinois. Under the Policy, Federal provided insurance coverage to Proudfoot for losses due to theft by Proudfoot employees. From January, 1991 to March, 1992, Proudfoot UK and APPME retained another corporation organized under the laws of England, Payroll Services Ltd. ("PSL"), to administer payroll management services. Specifically, PSL produced the payroll, made payments to staff and to British tax collection services, and performed all other payroll services, for Proudfoot UK and APPME. According to Proudfoot, the companies' relationship with PSL was based upon a course of conduct rather than a formal contract.

 During the relevant period, Proudfoot UK and APPME transferred funds to PSL by instructing their respective banks to remit funds to a "client account" maintained by PSL at its bank in England. On or about March 23, 1992, PSL notified Proudfoot that PSL's funds were seriously depleted, and that it was entering provisional liquidation. Subsequent investigation by Proudfoot revealed that PSL had allegedly failed to pay a sum of $ 898,443.46 to UK Inland Revenue on behalf of Proudfoot. Asserting that this loss was covered under the Policy, Proudfoot filed a Proof of Loss with Federal on May 14, 1992. *fn1" On July 31, 1992, Federal advised Proudfoot that it was disclaiming coverage. In support of its decision, Federal noted that, in its view, PSL had consistently acted as a contractor for Proudfoot rather than as an employee of Proudfoot, and that the cause of the loss of funds (i.e., whether through misappropriation or simply through imprudent investing) *fn2" was unknown. However, Federal invited Proudfoot to offer any information it had "which might qualify our understanding of the matter." During the following months, each side attempted to convince the other of its position. On September 24, 1992, Federal's in-house counsel in New Jersey, Christopher Franklin, reaffirmed Federal's disclaimer after meetings with Proudfoot's counsel in New York. Proudfoot filed the present action on October 15, 1992.

 II. Standard for Dismissal for Forum Non Conveniens

 The doctrine of forum non conveniens allows a court to decline to exercise its jurisdiction for prudential reasons, even when that jurisdiction is otherwise proper. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). The decision to do so, however, rests within the district court's sound discretion. Koster v. Lumbermens Mut. Casualty Co., 330 U.S. 518, 524, 91 L. Ed. 1067, 67 S. Ct. 828 (1947). To guide a court in considering motions to dismiss for forum non conveniens, the Supreme Court has articulated a list of "private interest factors," relating to the convenience of the litigants, and "public interest factors," relating to the convenience of the forum. See Gilbert, 330 U.S. at 508-09. *fn3" Even after weighing those factors, however, a district court retains "substantial flexibility" in deciding whether to grant the forum non conveniens motion. Van Cauwenberghe v. Biard, 486 U.S. 517, 529, 100 L. Ed. 2d 517, 108 S. Ct. 1945 (1988).

 III. Discussion

 Proudfoot first asserts that Federal's motion is barred by the doctrine of res judicata. We initially observe that Proudfoot has cited no authority in support of its claim that a court's decision to deny a motion to dismiss based on forum non conveniens is subject to the doctrine of res judicata. Indeed, the only authority cited by Proudfoot whatsoever is 92 CJS § 201, which, according to Proudfoot, states that "the doctrine of res judicata applies to orders or decisions on motions for change of venue. . . ." The cited authority, however, is entitled "Vendor and Purchaser: Necessity of Freedom from Encumbrances;" it does not contain the quoted language, and is in no way related to the issue before us. *fn4" In any event, it is axiomatic that an essential element of res judicata is that the assertedly preclusive order or judgment be final. See, e.g., Wade v. Hopper, 993 F.2d 1246, 1252 (7th Cir. 1993). The New Jersey District Court made no express finding of finality; on the contrary, the court made every indication that the issue remained open for reconsideration. For example, the court noted that Federal claimed that it lacked access to various documents and PSL employees in England, but concluded that Federal had failed to persuade the court that discovery procedures would be unavailable if the case remained in the United States. Accordingly, the court held that that factor was insufficient to warrant dismissal, but added the caveat "at least at this juncture in the case." Alexander Proudfoot Plc v. Federal Insurance Co., Civil Action No. 92-4384 (MLP), slip op. at 9 (D.N.J. Sept. 30, 1993). Similarly, the court concluded by stating that Federal had failed to sustain its burden "on the present record, " thus implicitly leaving the issue open for later consideration. Alexander Proudfoot Plc, slip op. at 10. It is therefore apparent that the court's ruling was anything but final.

 Furthermore, even if a court grants a motion to dismiss for forum non conveniens, and thus enters final judgment, another court may revisit the issue if material facts underlying the judgment have changed. See Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 312 (5th Cir. 1987), rev'd on other grounds, 486 U.S. 140, 100 L. Ed. 2d 127, 108 S. Ct. 1684 (1988); cf. Parsons v. Chesapeake & Ohio Ry. Co., 375 U.S. 71, 73-74, 11 L. Ed. 2d 137, 84 S. Ct. 185 (1963). In the present case, as noted above, the New Jersey District was not convinced that Federal would be unable to acquire access to PSL's employees and documents through traditional discovery procedures. In its present motion, Federal has submitted evidence in support of its claim: its efforts to obtain the testimony of former PSL employees have been frustrated, and PSL's liquidators have refused to provide Federal with the whereabouts of relevant PSL directors. In addition, the liquidators stated that any information regarding PSL should be obtained through the liquidators rather than the former employees. *fn5" We conclude that this evidence regarding the sufficiency of discovery procedures available in this country warrants revisiting the forum non conveniens issue. *fn6"

 At the outset of any forum non conveniens inquiry, we must consider whether an alternative forum exists. Piper, 454 U.S. at 255 n.22. This requirement is satisfied when a defendant is amenable to process in the preferred jurisdiction. Id. In the instant case, Federal has represented that it is amenable to process in England, and this prerequisite is thus fulfilled. We also observe that there is traditionally a strong presumption in favor of the plaintiff's choice of forum. Id. at 255. However, as the New Jersey court likewise noted, a plaintiff's choice of forum is entitled to less deference if the plaintiff is not an American citizen. Id. at 241. Accordingly, while Proudfoot's decision to pursue this action in the United States will not be entirely discounted, it ...


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