On Kultur's claim for breach of good faith and fair bargaining, CGP acknowledges that English law does not provide a comparable cause of action, but reiterates that the equitable principles of estoppel may apply in situations where a party, during the course of commercial negotiations, breaches the recognized duty to refrain from engaging in negligent, reckless or knowing misrepresentation. (Id. at 18)
Based on CGP's proffer on the relevant English law, this Court is satisfied that the subject matter of Kultur's Claims would be adequately recognized under English law and may be appropriately redressed in an English court. CGP has met its burden of establishing that England is an adequate alterative forum.
2. Public and Private Interests
Having determined that England represents an adequate alternative forum, the Court is now required to determine whether various public and private interest factors weigh in favor of retention or dismissal of the action. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947); Lacey II, 932 F.2d at 180. These factors (the "Gulf Oil factors") fall into two groups: those relating to the convenience of the litigants and those affecting the public interest in the fair and efficient administration of justice.
Factors in the first group are: (1) plaintiffs' choice of forum; (2) the ease of access to sources of proof; (3) the availability and cost of compulsory process for unwilling witnesses; (4) any obstacles to a fair trial; and (5) in general, all other factors relating to the expeditious and efficient adjudication of the dispute.
Factors in the second group include: (1) the relative backlog and other administrative difficulties in the two jurisdictions; (2) the fairness of placing the burdens of jury duty on the citizens of the state with the greater interest in the dispute; (3) the local interest in adjudicating localized disputes; and (4) the appropriateness of having the jurisdiction whose law will govern adjudicate the dispute in order to avoid difficult problems in conflicts of laws. Id.; see Sandvik, Inc. v. Continental Ins. Co, 724 F. Supp. 303, 307 (D.N.J. 1989); Hardaway Constructors, Inc. v. Conesco Indus., 583 F. Supp. 617, 619-20 (D.N.J. 1983).
As a general rule, a court may not predicate dismissal on a singe Gulf Oil factor. Lacey II, 932 F.2d at 189. No one factor should be given conclusive weight. However, the factors should be balanced on a qualitative, rather than quantitative, basis. Id. at 182. Therefore, the factors should not be viewed as equal in weight, and, depending on the circumstances of each case, some factors may be "'more equal" than others. Id.
a. Private Factors
i. Kultur's Choice of Forum
In weighing the Gulf Oil factors, this Court must generally defer to the plaintiff's choice of forum unless the balance is tipped strongly in favor of dismissal. See Gulf Oil, 330 U.S. at 508, 67 S. Ct. at 843; Shutte v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S. Ct. 871, 27 L. Ed. 2d 808 (1971). Deference to the plaintiff's choice of forum is particularly required where the plaintiff resides in the forum state. Piper, 454 U.S. at 255-56, 102 S. Ct. at 265 (stating that "when the home forum has been chosen, it is reasonable to assume that this choice is convenient"). See also Gulf Oil, 330 U.S. at 507, 67 S. Ct. at 842 (stating that the doctrine of forum non conveniens is to guard against plaintiff's "temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself").
Kultur has chosen a home forum in which to pursue its claims against CGP. Nonetheless, if required to assume the existence of a contract between the two parties, the Court finds that the record evidence reveals that the substance of that agreement may contain a forum selection term, which provides that the parties resolve all contract-related disputes in an English court. Each of the three proposed Heads of Agreement contains such a forum selection clause. (CGP's Brief in Support of Motion to Dismiss, Exhibits 2-4) The existence of a valid forum selection clause would vitiate any presumption that New Jersey is a convenient forum for this litigation. See In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989) (stating that "deference to the filing forum would only encourage parties to violate their contractual obligations").
However, the proposed Heads of Agreement were drafted prior to the time CGP officials allegedly approved the deal with Kultur. The draft License Agreement, created subsequently by Kultur, did not contain any forum selection provision. Given the fact that Kultur has offered no written contract, or other significant proof regarding the terms of an alleged oral agreement, the Court cannot determine whether the draft License Agreement embodies the terms of the earlier oral agreement or reflects merely an ex post attempt by Kultur to alter the terms.
Therefore, the Court will factor the proposed forum selection clause into the Gulf Oil equation. The Court will presume that the New Jersey forum is convenient. However, given the evidence that Kultur may have agreed to litigate any of its contract-related disputes with CGP in England, the Court will not require that CGP establish that the other Gulf Oil private and public factors weigh heavily in favor of adjudication in an English forum. See Lony v. E.I. DuPont de Nemours & Co., 886 F.2d 628, 635 (3d Cir. 1989) (finding that where plaintiff resides in forum state, if the private factors are at equipoise, or are merely "tipped" in favor of the defendant, the district court should retain jurisdiction). The Court will accord no special weight to Kultur's choice of a New Jersey forum.
ii. Access to Proof and Witness Availability
In addressing these Gulf Oil factors, the Court must "scrutinize the substance of the dispute between the parties to evaluate what proof is required, and determine whether the pieces of the evidence cited by the parties are critical, or even relevant" to Kultur's claims or CGP's potential defenses. Van Cauwenberghe v. Biard, 486 U.S. 517, 528, 108 S. Ct. 1945, 1952, 100 L. Ed. 2d 517 (1988).
Defendants raise the following points in support of dismissal. First, voluminous documentary evidence is located in England, and Kultur would be challenged to obtain this evidence in view of the international laws that would govern discovery if this Court retains jurisdiction. Second, CGP would be severely burdened by having to litigate this action in New Jersey. Third, and most significantly, Higham is the crucial witness in this case. CGP no longer employs Higham. The circumstances of his termination are currently the subject of a lawsuit in England. (Albert Affidavit P 17). Higham is beyond the subpoena power of this Court. CGP argues that the inability to produce Higham as a witness before a jury in this case will prejudice CGP's defense.
The Court is convinced that the issues of document discovery and the convenience of party and non-party witnesses are at equipoise. Presumably, Kultur would assent to a more burdensome discovery process in exchange for a New Jersey forum. Potential witnesses most likely reside in both England and New Jersey. Finally, CGP cannot now be heard to complain about the burdens of litigating this action in New Jersey. CGP took the risk of defending a lawsuit in New Jersey when it reached out to a New Jersey resident to solicit and negotiate the alleged agreement.
The key private factor is the unavailability of Higham, the critical witness and a non-party in this case. He is beyond the subpoena power of this Court. See 28 U.S.C. § 1781. CGP asserts that Higham had no authority to enter into a contract with Kultur on CGP's behalf. (Albert Affidavit PP 15) Higham has sued CGP in England for wrongful termination of his consultancy. In defense, CGP has answered that Higham breached his agreement by, among other things, acting outside his authority. (Albert Affidavit PP 17) Given the state of affairs between CGP and Higham, CGP may no longer have the influence to persuade him to appear as a witness here.
Kultur has not attempted to guarantee Higham's willingness to testify at trial here. Although CGP has not definitively established that Higham would be unwilling to testify, the circumstances giving rise to Kultur's claims suggest that he might wish to avoid involvement in this litigation. The Third Circuit has acknowledged the burden that confronts litigating parties and a trial court when key non-party witnesses are not willing to testify and are beyond the reach of the court's compulsory process. Lacey II, 932 F.2d at 183.
Kultur argues that Higham's unavailability at trial should not be an obstacle to adjudication in New Jersey because the Federal Rules of Evidence would allow the introduction of his deposition testimony. Fed. R. Evid. 804(b)(1). Under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 28 U.S.C. § 1781, Kultur may compel Higham's attendance at a deposition, but must make prior application to the relevant governmental authorities. Kultur represents that American litigants have succeeded in requests to take depositions in England utilizing American procedures. In addition, requests to videotape depositions have also been granted. (Letter from Kultur's counsel, dated July 14, 1994) CGP disputes this representation and argues that it is very difficult to receive authorization under the Hague Convention to take a videotaped deposition under American rules of procedure. (Letter from CGP's counsel, dated July 21, 1994)
Even assuming that the deposition of Higham could be taken with the use of videotape and American procedural rules, CGP takes the position that the video deposition would not be an adequate substitute for live testimony and would hinder CGP's defense. The Court agrees with CGP. "To fix the place of trial at a point where litigants cannot compel personal attendance of witnesses and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants." Gulf Oil, 330 U.S. at 511, 67 S. Ct. at 844.
In the instant tort and contract case, which turns so critically on the representations of Higham, live testimony is necessary to allow the jury to assess witness demeanor. Allstate Life Ins. Co. v. Linter Group Ltd., 994 F.2d 996, 1001 (2d Cir.), cert. denied, 126 L. Ed. 2d 334, U.S. , 114 S. Ct. 386 (1993); see also Schertenleib v. Traum, 589 F.2d 1156, 1159 (2d Cir. 1978) (absence of live testimony is "very serious handicap" favoring dismissal); ACLI Int'l Commodity Servs. v. Banque Populaire Suisse, 652 F. Supp. 1289, 1296 (S.D.N.Y. 1987) (dismissing on forum non conveniens grounds, after concluding that unavailability of key witness and the absence of live testimony outweighed plaintiff's choice of home forum).
The potential use of a videotaped deposition at trial does not alter the Court's reasoning. "The rule in our circuit is clear: a videotape deposition is usually better than a stenographic deposition when the witness cannot appear at trial; however, since demeanor is best judged by live testimony; live testimony is usually better than videotaped testimony." Windsor Shirt Co. v. New Jersey Nat'l Bank, 793 F. Supp. 589, 608 (E.D. Pa. 1992), aff'd, 989 F.2d 490 (3d Cir. 1993). See also United States v. Ismaili, 828 F.2d 153, 170 (3d Cir.) (Becker, J., concurring), cert. denied, 485 U.S. 935, 108 S. Ct. 1110, 99 L. Ed. 2d 271 (1988); United States v. Wilson, 601 F.2d 95, 97 (3d Cir. 1979).
A deposition -- videotaped or otherwise -- simply does not simulate the conditions of trial, where the witness must testify in a courtroom, on the witness stand, before a judge and a jury. These inimitable conditions may mean everything when the "opportunity for the factfinder to appraise the credibility of key witnesses [may make the determinable difference] in this case." ACLI Int'l, 652 F. Supp. at 1296.
In view of the Court's inability to compel Higham's appearance as a witness, and his presumed unwillingness to appear as a witness, the Court finds that the private factors of witness availability and access to proof weigh in favor of adjudicating this action in England. Given the determination that Kultur's choice of a New Jersey forum will be accorded no special weight, the Court is satisfied that the Gulf Oil private factors weigh in favor of adjudicating this case in England.
b. Public Factors
i. Relative Backlog and Other Administrative Difficulties in the Two Jurisdictions
In addressing CGP's motion to dismiss, the Court may consider relative docket conditions or calendar congestion in the English courts and the District of New Jersey. Cf. Hernandez v. Graebel Lines, 761 F. Supp. 983, 991 (E.D.N.Y. 1991) (on transfer motion, which also requires consideration of Gulf Oil factors, stating that this factor is not decisive but may be given some weight). It appears that an English court will provide for a more expeditious resolution of this case, should it proceed to trial. CGP represents that this case could be resolved in approximately eighteen months in the English courts, where the pleadings phase would take approximately three months, the discovery phase another three months, with a trial to ensue six to nine months later. (Smouha Affidavit P 27) In contrast, litigation in this district, on average, may be resolved before pretrial in 5 months, during or after pretrial in 14 months, or at trial in 23 months. 1992 Annual Report of the Director of the Administrative Office of the United States Courts, at 172, 174, 208, 210. The Court concludes that this factor favors the English courts.
ii. Jurisdictional Interests and Community Burden