The opinion of the court was delivered by: Lechner, District Judge.
This is a breach of contract action brought by plaintiffs
Mediterranean Golf, Inc. ("Mediterranean Golf") and Robert
Trent Jones ("Jones") (collectively, the "Plaintiffs") against
defendant Denyse Louppe Hirsh ("Hirsh"). Jurisdiction is
asserted pursuant to 28 U.S.C. § 1331. Currently before the
court is the motion brought by Hirsh to dismiss the complaint
on the grounds of forum non conveniens and international
comity.*fn1 For the reasons set forth below, the motion to
dismiss on the ground of forum non conveniens is granted; the
motion to dismiss on the ground of international comity is
Jones is a golf course architect who resides in Florida.
Jones Dec., ¶ 2. Jones has never resided in France. Id. He is
the Chairman, President and sole shareholder of Mediterranean
Golf. Id. Mediterranean Golf is a Delaware corporation with its
principal place of business in Florida. Davis Dec., ¶ 2. The
wholly-owned subsidiary of Mediterranean Golf is S.C.I. Cascade
des Maures ("SCI"). Id., ¶ 3; Jones Dec. ¶ 7. SCI is a
French company which owns and develops property. Hirsh Aff., ¶
5. Jones is the Chairman and President of SCI. Id.; Jones Dec.,
¶ 7. Mediterranean Golf was formed in 1982 for the purpose of
holding the stock of SCI.*fn2 Hirsh Aff., ¶ 10.
SCI has an interest in a golf course project under
development in Vidauban, France, located in the Provence
region of southern France (the "Vidauban Project"). Jones
Dec., ¶ 7. The Vidauban Project involves a plan to develop more
than 1100 hectares of land in Vidauban into a resort complex of
three golf courses, forty tennis courts, two artificial lakes,
six luxury hotels and two hundred shops, houses and replicas of
Provencale villages. Hirsh Aff., ¶ 4; Sokol Aff., ¶ 4.
Hirsh is a French citizen married to a United States
citizen, Allen Hirsh ("A. Hirsh") (collectively, the
"Hirshes"). Hirsh Aff., ¶ 2. Since their marriage in 1973, the
Hirshes have maintained residences at A. Hirsh's family home
in Montclair, New Jersey, Hirsh's family flat in Paris and at
their vineyard in Ville Croze, Provence, France. Id. During the
past fifteen years, Hirsh has lived primarily in Ville Croze,
Provence, France. Id., ¶ 3. From 1973 through 1988 the Hirshes
owned a vineyard outside Ville Croze. Id.
In 1981 at the Hirshes' Montclair residence A. Hirsh
introduced Hirsh to Jones. Id., ¶ 4; Jones Dec., ¶ 3. A. Hirsh
and Jones had met at the Montclair Golf Club, where each of
them are members. Hirsh Aff., ¶ 4. At the time they were
introduced, Jones told Hirsh about the Vidauban Project. Id.
Jones told Hirsh he had already acquired rights to purchase
parcels of land necessary for the Vidauban Project. Id., ¶ 5.
Jones further told Hirsh of difficulties he had with respect to
obtaining the necessary land use approvals from the local
French authorities. Id. Aware that Hirsh was at that time a
French citizen and a long time resident of Provence with
substantial contacts among government officials and business
leaders in the region, Jones asked Hirsh if she could use her
familiarity with these people and institutions in the area to
assist him. Id., ¶¶ 2, 5. Hirsh told Jones she would try;
subsequently, she obtained the required land use approvals
after time and effort. Id., ¶¶ 5-6.
During the following eight years, Hirsh worked in the
Vidauban Project, with and without a contract of employment.
In 1982 Jones asked and Hirsh agreed to become the co-Gerante
of SCI with Firouz Affrouz ("Affrouz"). Id., ¶ 6. A Gerante is
the equivalent of a chief operating officer of a company. Id.
Affrouz resigned his position in October 1982 at which point
Hirsh became the sole Gerante. Id. After Affrouz' resignation,
SCI had three employees, Hirsh, a secretary and Jacques
Mikelian ("Mikelian"), the Project Manager. Id., ¶ 8. SCI
had its offices at Hirsh's vineyard in Ville Croze until the
vineyard was sold in 1989. Id.
As Gerante of SCI Hirsh obtained and maintained the zoning
approvals, prepared budgets, made and cultivated contacts with
local and national French governmental authorities, worked
with the various advisors and consultants for planning and
engineering, negotiated fees and financing, assisted attorneys
who represented Jones and attended local functions for the
Vidauban Project. Id., ¶ 7. These efforts required extensive
travel throughout France to meet government officials, bankers
and attorneys. In addition, Hirsh traveled to the United States
to discuss the status of the Vidauban Project with Jones or his
advisors. Id., ¶ 9. Generally, Hirsh went to Florida during her
trips to the United States; however, she did make some trips to
New York and New Jersey. Id. During some of her visits to the
United States Hirsh would entertain French contacts. Id.
From 1982 until 1987 Hirsh worked as Gerante of SCI without
a contract. She entered her first contract with respect to her
work for the Vidauban Project in 1987. Id., ¶ 11. At that time,
Hirsh entered two contracts concerning her employment: the
first was a five year employment contract between Hirsh and
SCI; the second was a contract between Hirsh and Jones. Id.
Under the second contract, Jones personally and unconditionally
guaranteed all sums due and payable to Hirsh under the contract
with SCI. Id. Both of these contracts were renegotiated in
1989. The renegotiations resulted in the "Amended and Restated
Employment Agreement" with SCI (the "SCI Contract") and an
Employment Agreement with Mediterranean Golf (the
"Mediterranean Golf Contract"). Id., ¶ 12, Ex. D. Under both of
these contracts, Hirsh's employment was extended to 31 December
1993. Id., ¶ 13.
The Mediterranean Golf Contract was negotiated on behalf of
Mediterranean Golf by Frank Weller, Esq. ("Weller"), a
Maryland attorney. Jones Dec., ¶ 5. Hirsh was represented by
Cole & Dietz, a New York City law firm. Id. Hirsh's Montclair,
New Jersey address is given as her residence on the
Mediterranean Golf Contract. Id.
Although Hirsh's duties as Gerante did not change after the
execution of the SCI Contract and Mediterranean Golf Contract,
her duties were set forth thereunder. Under the SCI Contract,
Hirsh was required to serve as Gerante of the SCI and continue
preparations of the master plan for the Vidauban Project.
Hirsh Aff., ¶ 14. Jones states that the SCI Contract dealt
exclusively with Hirsh's services relating to the Vidauban
Project. Jones Dec., ¶ 7.
The Mediterranean Golf Contract required Hirsh to "`develop
and implement marketing and public relations programs for
[Mediterranean Golf] for the purpose of promoting the `Robert
Trent Jones' name and the business activities and goodwill of
all businesses controlled by [Jones]. . . .'" Mediterranean
Golf Contract, 1. At oral argument, counsel for Plaintiffs
contended the Mediterranean Golf Contract implicitly required
Hirsh to travel around the world to fulfill her duty to
promote the Robert Trent Jones name. However, there is no
language in the Mediterranean Golf Contract which supports
that contention. Moreover, Plaintiffs have not submitted an
affidavit or other documentation to support that contention.
The Mediterranean Golf Contract also prohibited Hirsh from
accepting employment by any company other than those companies
owned by Jones. Id., 2.
Hirsh states that in fulfilling her obligations under the
Mediterranean Golf Contract she was never required to work for
any of Jones' other companies other than SCI. Hirsh Aff.,
¶ 14. The Plaintiffs state throughout Hirsh's employment under
the Mediterranean Golf Contract she was in "regular
communication" with Jones or his advisors who were located in
the United States. Fritz Dec., ¶ 4, Ex. 4. Alan Blake Davis,
Chief Operating Officer and Vice President of Mediterranean
Golf ("Davis"), states he had extensive meetings with Hirsh in
the United States. Davis Dec., ¶ 3.
In 1990 Jones hired a team of advisors to review his
domestic and international operations. Jones Dec., ¶ 6. Davis
was one of the people hired for that purpose. Davis Dec., ¶ 3.
In April 1990 Hirsh attended a meeting in Florida where she was
advised that her salary was being reduced because of financial
difficulties of Jones and his companies. Hirsh Aff., ¶ 18. In
June 1990 Hirsh attended a meeting in Paris at which Hirsh was
requested to give a presentation on the Vidauban Project with
only two hours' notice. Id.
Jones states that he realized, as a result of the
above-mentioned review, there was little to no promotion of
his name as required under the Mediterranean Golf Contract.
Jones Dec., ¶ 6. Davis states he, on behalf of Jones, sent to
Hirsh a letter, in October 1990, terminating her as Gerante
under the SCI Contract; in November 1990 he sent Hirsh a letter
of termination of the Mediterranean Golf Contract. Davis Dec.,
On 8 February 1991 Hirsh filed a complaint against Jones,
Mediterranean Golf and SCI in the Conseil de Prud'hommes (the
"Labor Court") located in Draguignan (the "French Action").
Id., ¶ 5(c). The Labor Court has jurisdiction over disputes
between an employer and an employee.*fn3 Id., ¶ 16; Sicard
Dec., ¶ 5. The French Action is a breach of contract claim
based on the allegation that Jones, SCI and Mediterranean Golf
did not honor their contractual obligations under the SCI
Contract and the Mediterranean Golf Contract. Hirsh Aff., ¶¶
21-22; Sicard Dec., ¶ 2.
On 13 March 1991 Jones brought a special proceeding in the
Court of General Jurisdiction seeking an annulment of the
temporary judicial lien and challenging the Labor Court's
jurisdiction. Sokol Aff., ¶ 5(d), Ex. G. Jones argued the Labor
Court was without jurisdiction to adjudicate his liability
under the personal guaranty in the SCI Contract and
Mediterranean Golf Contract. Id. In addition, Jones,
Mediterranean Golf and SCI contested jurisdiction on the ground
that Hirsh is an independent contractor, not an employee.
Sicard Dec., ¶ 15.
On 10 April 1991 the Court of General Jurisdiction denied
Jones' request to annul the temporary judicial lien. Sokol
Aff., ¶ 5, Ex. H. In addition, the Court of General
Jurisdiction held that only the Labor Court could hear Jones'
jurisdictional challenge. Id. On 28 May 1991 a settlement
conference was held by the Labor Court; settlement was not
reached. Id. The jurisdictional challenge and the merits of the
French Action were scheduled to be heard on 29 October 1991.
Id., ¶ 5; Sicard Dec., ¶ 3. To date, this court has not been
advised of any decision.
On 4 May 1991 the Plaintiffs instituted this action against
Hirsh.*fn4 Fritz Dec., ¶ 2, Ex. 1 (the "Complaint"). The
Complaint does not refer to the SCI contract. Count One of the
Complaint asserts a claim for breach of fiduciary duty arising
under the Mediterranean Golf Contract. Complaint, ¶¶ 7-8. The
allegations of the Complaint state Hirsh failed to perform and
refused to cooperate with the Plaintiffs, failed to adequately
maintain records and supervise personnel and expenses and
failed to disclose information regarding businesses in which
Jones has an interest. Id., ¶ 9. In addition, Count One alleges
Hirsh intentionally used corporate funds of Jones-owned
businesses for personal use without recording the same. Id., ¶
10. The only explicit allegations in the Complaint concerning
misappropriation of corporate funds are about funds of SCI.
Id., ¶ 26.
Count Two of the Complaint asserts a claim for breach of
contract and seeks rescission of the Mediterranean Golf
Contract. Id., ¶¶ 12-18. The Complaint alleges that Hirsh
failed to perform her duties under the Mediterranean Golf
Contract and that Mediterranean Golf suffered damages as a
result. Id. Count Three is also for breach of the Mediterranean
Golf Contract and seeks damages in an amount to be determined
at trial. Id., ¶¶ 19-20. Count Four of the Complaint alleges
Hirsh received benefits far in excess of the benefits conferred
upon Mediterranean Golf. Id., ¶¶ 21-23. Count Five of
the Complaint is for fraud on the ground that Hirsh
intentionally failed to disclose information to
Mediterranean Golf and Jones with respect to her work under
the Mediterranean Golf Contract. Id., ¶ 24-30.
Hirsh argues the appropriate place for trial in this matter
is France. Hirsh seeks to dismiss the action on the ground of
forum non conveniens because the subject matter of the dispute
took place in France, the relevant witnesses and documents are
located in France and there is an ongoing related action in
France, the French Action. Moving Brief, 8-21; Reply Brief,
5-14. In addition, Hirsh argues the Complaint should be
dismissed in the interest of international comity. Id., 21-22.
The doctrine of forum non conveniens permits a court to deny
hearing a case despite the existence of jurisdiction out of
consideration for the interests of the litigants and in the
interest of justice. Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). The analysis
under a motion to dismiss for forum non conveniens is flexible
and must be made on the unique facts of each case. Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 249-50, 102 S.Ct. 252,
262-63, 70 L.Ed.2d 419 (1981), reh'g denied, 455 U.S. 928, 102
S.Ct. 1296, 71 L.Ed.2d 474 (1982). A determination of forum non
conveniens "`represent[s] exercise[ ] of structured discretion
by trial judges appraising the practical inconveniences posed
to the litigants and to the court should a particular action be
litigated in one forum rather than another.'" Lony v. E.I. Du
Pont de Nemours & Co., 886 F.2d 628, 632 (3d Cir. 1989)
(quoting Pain v. United Technologies Corp., 637 F.2d 775, 781
(D.C. Cir. 1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980,
71 L.Ed.2d 116 (1981)) [hereinafter Lony I]; see
also Lacey v. Cessna Aircraft Co., 932 F.2d 170, 178 (3d Cir.
1991) [hereinafter Lacey II]; Lacey v. Cessna Aircraft Co.,
862 F.2d 38, 43 (3d Cir. 1988) [hereinafter Lacey I]. Added to that
are the "interests of justice" and the impact on judicial
administration of maintaining related actions in separate fora.
Koster v. (American) Lumbermens Mut. Casualty Co.,
330 U.S. 518, 527, 67 S.Ct. 828, 833, 91 L.Ed. 1067 (1947).
Of paramount interest in a forum non conveniens analysis is
whether "trial in the chosen forum would `establish . . .
oppressiveness and vexation to a defendant . . . out of all
proportion to plaintiff's convenience,' or when the `chosen
forum [is] inappropriate because of considerations affecting
the court's own administrative and legal problems.'" Piper, 454
U.S. at 241, 102 S.Ct. at 258 (quoting Koster, 330 U.S. at
524, 67 S.Ct. at 831-32) (emphasis added); see also Lony v.
E.I. Du Pont de Nemours & Co., 935 F.2d 604, 608 (3d Cir. 1991)
[hereinafter Lony II]. The initial inquiry for a district court
deciding a forum non conveniens motion is whether there is an
alternate adequate forum to hear the case. Lacey I, 862 F.2d at
If an adequate alternative forum exists, the district court
must consider the various factors set forth by the Supreme
Court in Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. at 843; see
also Lony I, 886 F.2d at 632-33. These factors fall into two
broad categories. One category includes factors relating to the
so-called "private interests" of the parties in the context of
the litigation: the plaintiff's choice of forum, the ease of
access to sources of proof, availability of compulsory process
over unwilling witnesses, the cost of attendance of willing
witnesses, obstacles to a fair trial and the possibility of a
jury view of the premises. Gulf Oil, 330 U.S. at 508, 67 S.Ct.
The other category consists of the "public interest" in the
administration of courts and the adjudication of cases: court
congestion and other administrative difficulties, placing the
burden of jury duty on those having the closest ties to the
action, local interests in having cases adjudicated at home
and familiarity of the forum court with the applicable law.
Id. at 508-09, 67 S.Ct. at 843.
In making its decision, a "district court is required to
develop adequate facts to support its decision and to
articulate specific reasons for its conclusion" that another
forum is appropriate. Id., at 39. Among the considerations are
whether the moving party submitted adequate data of record to
facilitate the appropriate analysis, whether the moving party
has met its burden of persuasion, whether the contentions of
the plaintiff were adequately considered and whether the
relevant private and public interests were both adequately
considered and balanced. Id.
1. Adequate Alternative Forum
The alternative forum proposed by Hirsh is France. Moving
Brief, 9-10. The Plaintiffs argue, however, France is not an
adequate alternative forum. Opp.Brief, 9. The Plaintiffs rely
on their pending jurisdictional challenge in the French
Action. Id. The jurisdictional challenge attacks the
jurisdiction of the Labor Court concerning the French Action;
it does not challenge the fact that another French court or the
Court of General Jurisdiction could not hear the French Action
or indeed this action.
In considering this motion, the focus is not on whether
Plaintiffs "would be unduly inconvenienced by its dismissing
the case, [but] rather . . . on whether [Hirsh] would be
unduly burdened and oppressed by . . . retaining jurisdiction
in the United States." Lony I, 886 F.2d at 640. To focus