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DEKOVEN v. FRANK

October 12, 2005.

RONALD DEKOVEN, Plaintiff,
v.
KNIGHT FRANK, LLP, Defendant.



The opinion of the court was delivered by: AMY ST. EVE, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Ronald DeKoven ("Plaintiff"), a citizen of the state of Illinois, brings this Complaint against Defendant Knight Frank ("Defendant"), a limited liability partnership headquartered in London, England, alleging professional negligence and fraudulent misrepresentation. Defendant has moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. In the alternative, Defendant moves to dismiss under the doctrine of forum non conveniens. For the reasons discussed below, the Court grants Defendant's Motion on the basis of forum non conveniens.*fn1

BACKGROUND

  Plaintiff is a citizen of Chicago, Illinois who frequently travels to London for business purposes. (R. 7-2; Pl.'s Compl. at ¶¶ 1, 5.) Defendant, a real estate brokerage and consulting firm, is a limited liability partnership formed in the United Kingdom with its principal place of business in London, England. (R. 7-2; Def.'s Am. Notice of Removal at ¶ 3.) All of Defendant's partners are citizens of either the United Kingdom or Spain. (Id. at ¶ 7.)

  In April 2003, Plaintiff retained Defendant to help him find an apartment in London. (R. 7-2; Pl.'s Compl. at ¶ 10.) Mr. Simon Pritchard-Smith ("Pritchard-Smith"), a partner with Defendant, was Plaintiff's main contact. (Id.) With Pritchard-Smith's assistance, Plaintiff secured an apartment for lease in October 2003. (Id. at ¶ 11.) A few months later, Plaintiff and Pritchard-Smith viewed a residence that was for sale at 25 Wilton Place in London ("25 Wilton Place"). (Id. at ¶ 12.) Plaintiff alleges that he was hesitant to purchase 25 Wilton Place because he did not want a home that needed repair, but, according to Plaintiff, Defendant reassured him that the seller had obtained all the permits for the repairs. (Id.) Defendant further recommended a contractor ("Tyler London") to do any necessary work. (Id.) Based on these assurances, Plaintiff purchased 25 Wilton Place in June 2004 for 2.5 million British pounds.*fn2 (Id. at ¶ 13.)

  Since the time of the purchase, however, Plaintiff contends that he has spent more than just the purchase price on 25 Wilton Place. Specifically, Plaintiff alleges that he has spent an additional 55,000 pounds on permits, 20,000 pounds on retainer of Tyler London, and has had to continue to pay rent on his apartment in London while simultaneously making monthly mortgage payments on 25 Wilton Place. (Id. at ¶¶ 16, 17.) In November 2004, Tyler London went bankrupt and has not completed the necessary repairs. (Id. at ¶ 19.) At present, Plaintiff alleges that he owns an uninhabitable home and must hire yet another contractor to fix it. (Id. at ¶ 24.) On March 7, 2005, Defendant filed a lawsuit against Plaintiff in London County Court alleging that Plaintiff failed to pay commission due to Defendant in connection with the purchase of 25 Wilton Place. (R. 11-1; Def.'s Mem. in Supp. of Mot. to Dismiss at Ex. A.) In his "Defence" to that action filed on May 26, 2005, Plaintiff claimed that Defendant's failure to secure the seller's written acceptance of his initial offer negated Defendant's right to the commission.*fn3 (Id. at Ex. B.) Plaintiff did not dispute the jurisdiction of the London courts in that action.*fn4 (Id.)

  Approximately one week before submitting his "Defence" to the English suit, Plaintiff filed this lawsuit in the Circuit Court of Cook County asserting claims of professional negligence and fraudulent misrepresentation. (R. 7-2; Pl.'s Compl. at ¶ 1.) On July 13, 2005, Defendant removed this case to federal court based on diversity jurisdiction,*fn5 and now moves to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Defendant also moves to dismiss on the basis of forum non conveniens.

  ANALYSIS

  I. Forum non conveniens

  The doctrine of forum non conveniens allows a court to "dismiss a suit over which it would normally have jurisdiction if it best serves the convenience of the parties and the ends of justice." In re: Bridgestone/Firestone, Inc., 420 F.3d 702, 703 (7th Cir. 2005) (citing Kamel v. Hill-Rom Company, Inc., 108 F.3d 799, 802 (7th Cir. 1997)). When another forum has jurisdiction to hear a case, and when a trial in the plaintiff's 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. (citing In re: Ford Motor Co., 344 F.3d 648, 651 (7th Cir. 2003).

  II. The Doctrine of Forum Non Conveniens Requires Dismissal

  A forum non conveniens analysis consists of two steps: (1) the court must determine whether an adequate alternative forum is available; and (2) the court must weigh the private and public interest factors related to the litigation. Zelinski v. Columbia 300, Inc., 335 F.3d 633, 643 (7th Cir. 2003); see also Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 718 (7th Cir. 2002). In order to prevail, the movant must overcome the strong presumption in favor of the plaintiff's choice of forum. See In re: Bridgestone/Firestone, 420 F.3d at 703-04; Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1245 (7th Cir. 1990). When considering a motion to dismiss based on forum non conveniens, a court may consider the pleadings, affidavits, and "other documentary evidence submitted by the parties." Pliva D.D. v. Baxter Int'l Inc., No. 03 C 7371, 2004 WL 2011391 at *4 (N.D. Ill. Aug. 24, 2004) (citing Pyrenee, Ltd. v. Wocom Commodities Ltd., 984 F.Supp. 1148, 1152 n. 2 (N.D. Ill. 1997)).

  A. Adequate Forum

  The viability of an alternative forum depends on two factors: availability and adequacy. A forum is considered available "if all parties are amenable to process and are within the forum's jurisdiction." Kamel, 108 F.3d at 803 (citing In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1165 (5th Cir. 1987) (en banc), partially vacated on other grounds, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.E.2d 400 (1989)). The forum is adequate if the ...


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