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MEDITERRANEAN GOLF, INC. v. HIRSH

November 27, 1991

MEDITERRANEAN GOLF, INC. AND ROBERT TRENT JONES, PLAINTIFFS,
v.
DENYSE LOUPPE HIRSH, DEFENDANT.



The opinion of the court was delivered by: Lechner, District Judge.

OPINION

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 moot.

Facts

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.

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 SCI Contract provided that Hirsh would be compensated in French francs and that French law would apply. Id., ¶ 13, Ex. C, Art. III. The Mediterranean Golf Contract provided that Hirsh's compensation would be paid in a "combination of United States dollars and French Francs [sic] exchanged for United States dollars." Id., ¶ 13. The choice of law clause under the Mediterranean Golf Contract provided for the application of New York law. Id., Ex. D, Art. IV. The Mediterranean Golf Contract provided that SCI would pay Hirsh for twelve months the employment compensation due thereunder in the event it was terminated pursuant to the termination provision. Id., Ex. D at Art. II, § 2.1(e). In addition, both the SCI Contract and the Mediterrean Golf Contract had an unconditional and personal guaranty of Jones guarantying the payment of all sums due to Hirsh as well as a provision for payment in the event of a termination of either agreement. Id.

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., ¶ 4.

On 18 December 1990 Hirsh filed a petition with the Tribunal de Grande Instance (the "Court of General Jurisdiction") in Draguignan, France seeking authorization to place a temporary judicial lien on the Vidauban Project's real estate (the "Vidauban Property"). Sokol Aff., ¶ 5(a). Hirsh sought the temporary judicial lien in order to secure a potential judgment arising out of breach of contract claims against Jones, Mediterranean Golf and SCI. Sokol Aff., ¶ 5. On 20 December 1990 the Court of General Jurisdiction granted Hirsh's petition for a temporary judicial lien on the Vidauban Property (the "20 December Order"). Id., ¶ 5(b). The 20 December Order further provided that Hirsh must file a claim on the merits within two months with the court of proper jurisdiction. Id.

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.

Discussion

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.

A. Forum Non Conveniens

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 43.

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. at 843.

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 otherwise ...


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