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HIDROVIA v. GREAT LAKES DREDGE & DOCK CORPORATION

April 25, 2003

HIDROVIA, S.A., PLAINTIFF,
v.
GREAT LAKES DREDGE & DOCK CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Paul E. Plunkett, United States District Judge

MEMORANDUM OPINION AND ORDER

The case is before the Court on Great Lakes Dredge & Dock Corporation's ("Great Lakes") entered and continued motion to dismiss the amended complaint on the grounds of forum non conveniens. For the reasons set forth below, the motion is granted.

Discussion*fn1

Under the doctrine of forum non conveniens, "a trial court may dismiss a suit over which it would normally have jurisdiction if it best serves the convenience of the parties and the ends of justice." Kamel v. Hill-Rom Co., 108 F.3d 799, 802 (7th Cir. 1997).

When an alternative forum has jurisdiction to hear a case, and when a trial in the chosen forum would result in vexation and oppression to the defendant which would far outweigh the plaintiff's convenience or when the chosen forum would generate administrative and legal entanglements for the trial court, the court may dismiss the case.
Id.

The first step in the forum non conveniens analysis is to determine whether an adequate alternative forum is available to hear the dispute. Id. "An alternative forum is available if all parties are amenable to process and are within the forum's jurisdiction." Id. at 803. The forum is adequate if "the parties will not be deprived of all remedies or treated unfairly." Id.

The parties agree that Argentina is an available alternative forum. (See Great Lakes' Mem. Supp. Mot. Dismiss at 7-8; Hidrovia's Opp'n. at 12.) Hidrovia contends, however, that Argentina is not an adequate forum to resolve the dispute because: (I) Hidrovia would not be able to enforce an Argentine judgment or receive American dollars in satisfaction of any judgment; (2) Hidrovia would not be able to compel the testimony of witnesses; and (3) Hidrovia's ability to prove its case would be hampered by the lack of pre-trial discovery in Argentine courts. (Hidrovia's Opp'n at 12.)

Hidrovia has offered no evidence to substantiate these concerns. Hernan Martin Oriolo, Hidrovia's expert on Argentine law, says nothing at all about the feasibility of enforcing an Argentine judgment or Hidrovia's ability to have an Argentine judgment satisfied in American dollars. (See generally Hidrovia's Opp'n, Ex. G, Oriolo Aff.) Moreover, he admits that Argentine courts have the power to compel the testimony of witnesses at trial. (Compare Great Lakes' Reply, Ex. C. Rolon Aff. ¶ 20 with Hidrovia's Surreply, Ex. A, Oriolo Supplemental Aff. ¶ 13.) Because these purported concerns are speculative at best, they do not make Argentina an inadequate forum.

Mr. Oriolo does say, however, that "there are no pre-trial oral depositions, or provisions for answers to written interrogatories or document requests" under the Argentine National Code of Civil and Commercial Procedure ("the Code"). (Hidrovia's Opp'n, Ex. (9, Oriolo Aff. ¶ 5.) Rather, lie says that the parties must present the evidence on which they will rely at the time they file their pleadings. (Id. ¶ 7.) Rarely, an Argentine court will order a defendant to produce documents before trial, Mr. Oriolo says, but it will do so only if the plaintiff specifically identifies the documents sought and has a demonstrably reasonable fear that the evidence will be unavailable later. (Id. ¶¶ 5-6.)

Mr. Rolon, Great Lakes' expert on Argentine law, paints quite a different picture of the process. He says that the Code enables "a prospective plaintiff [to] ask the court to order the prospective defendant to produce an affidavit identifying certain personal information, exhibits, or documents." (Great Lakes' Reply, Ex. C, Rolon Aff. ¶ 10.) Moreover, Mr. Rolon says that the Code empowers the judge to order the production of documents, permits parties to serve interrogatories on public and private entities and allows the parties to request depositions of their opponents. (Id. ¶¶ 17-19.)

Undoubtedly, the truth about the Argentine litigation process lies somewhere between the all or nothing extremes described by the parties. But, because neither party saw fit to provide the Court with an English translation of the relevant Code sections, the precise contours of the process remain a mystery In the end, however, it does not matter. A forum is inadequate only if the remedy it provides "is so clearly inadequate or unsatisfactory," as when "the alternative forum does not permit litigation of the subject matter of the dispute," that "it is no remedy at all." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 & n. 22 (1981).

The parties agree that Argentine law recognizes Hidrovia's cause of action and that the Argentine courts have the power to depose the parties, order the production of documents and subpoena witnesses for trial. (Compare Great Lakes' Reply, Ex. C, Rolon Aff. ¶¶ 17-22 with Hidrovia's Surreply, Ex. A, Oriolo Supplemental Aff. ¶ 13.) The fact that Argentine evidence-gathering tools may be different in timing and scope from those available here does not make Argentina an inadequate forum. Borden, Inc. v. Meiji Milk Prods. Co., Ltd., 919 F.2d 822, 829 (2d Cir. 1990) ("[T]he unavailability of beneficial litigation procedures similar to those available in the federal district courts does not render an alternative forum inadequate."); see Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1283 (11th Cir. 2001) ("The plaintiffs' concerns about Argentine filing fees, the lack of discovery in Argentine courts, and their fear of delays in the Argentine courts do not render Argentina an inadequate forum.").

The next step in the analysis is to balance the private and public interests in the case. Kamel, 108 F.3d at 803. The private interests include: plaintiff's choice of forum, the ease of access to sources of proof, the availability of process to compel the attendance of unwilling witnesses and the cost of obtaining their attendance and any other "practical problems that make trial of a case, easy, efficient and economical." Id. The public interests include:

the administrative difficulties stemming from court congestion; the local interest in having localized disputes decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflicts of law or in the application of foreign law; ...

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