January 24, 2008
DAVID ALMONTE, PLAINTIFF-APPELLANT,
CAPCO ENTERPRISES, INC., GLORY USA, INC., DEFENDANTS, AND RELIABLE CASINO PRODUCTS & SERVICES, INC., DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, L-10309-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 18, 2007
Before Judges Fuentes, Grall and Chambers.
Plaintiff appeals from the order dismissing this products liability and negligence suit on the basis of forum non conveniens. While the trial judge issued a cogent written opinion, the decision is premature in that discovery limited to the forum non conveniens issue should have been conducted before the issue was resolved. We reverse and remand.
This products liability and negligence case arises out of a work-related accident that took place on July 22, 2005, in New York State. On that day, plaintiff, a resident of the Bronx, New York, was injured by a coin wrapping machine at his place of employment in Long Island City, New York. Defendant Capco Enterprises, Inc. (Capco), which plaintiff identifies in his brief to this court as the manufacturer of the machine, was a Delaware Corporation, with its principal place of business in Nevada, that is no longer in business. Defendant Reliable Casino Products & Services, Inc. (Reliable), a Nevada corporation with its principal place of business in Nevada, is identified by plaintiff as the successor to the manufacturer Capco. Defendant Glory U.S.A., Inc. (Glory), identified as the distributor of the machine, is a California corporation with its principal place of business in New Jersey, and is the only New Jersey connection in the case. Thus, based on the information provided in the record, the only connection that New Jersey has to these events is the fact that Glory, the distributor of the machine, is located here and that any necessary dealings other defendants may have had with Glory may have occurred here.
The lawsuit was commenced on December 30, 2005, and the amended complaint was filed on July 13, 2006. Reliable filed its answer on August 28, 2006. Plaintiff immediately served discovery demands upon Reliable; interrogatory requests were served on Reliable on September 6, 2006, and a notice to produce documents was served on Reliable on October 5, 2006. On November 20, 2006, before answering this discovery, Reliable filed its motion to dismiss on the basis of forum non conveniens. That motion was granted pursuant to the written opinion dated February 5, 2007, and order dated February 8, 2007. Plaintiff then filed this appeal.
Forum non conveniens is an equitable principle allowing a court to decline jurisdiction "whenever the ends of justice indicate a trial in the forum selected by the plaintiff would be inappropriate." Aguerre v. Schering-Plough Corp., 393 N.J. Super. 459, 474 (App. Div. 2007) (quoting D'Agostino v. Johnson & Johnson, Inc., 225 N.J. Super. 250, 259 (1988), rev'd on other grounds, 133 N.J. 516 (1993)). Dismissal of an action based on the doctrine of forum non conveniens falls within the discretion of the trial court, and that decision will not be overturned unless we find an abuse of discretion. In re Vioxx Litig., 395 N.J. Super. 358, 364 (App. Div. 2007) (citing Kurzke v. Nissan Motor Corp., 164 N.J. 159, 165 (2000)), certif. denied, __ N.J. __ (2007).
In evaluating whether the forum is appropriate, courts consider four private factors and four public factors. Kurzke v. Nissan Motor Corp., supra, 164 N.J. at 165-66. The four public factors are:
(1) the administrative difficulties which follow from having litigation pile up in congested centers rather than being handled at its origin,
(2) the imposition of jury duty on members of a community having no relation to the litigation,
(3) the local interest in the subject matter such that affected members of the community may wish to view the trial and
(4) the local interest in having localized controversies decided at home. [Id. at 165.]
The four private factors are:
(1) the relative ease of access to sources of proof,
(2) the availability of compulsory process for attendance of unwilling witnesses and the cost of obtaining the attendance of willing witnesses,
(3) whether a view of the premises is appropriate to the action and
(4) all other practical problems that make trial of a case easy, expeditious and inexpensive, including the enforceability of the ultimate judgment.
[Id. at 166.]
Finding none of the private factors, the trial judge found the doctrine of forum non conveniens applicable based solely on the public factors. Indeed, where the public factors are sufficient to sustain a forum non conveniens application, the court need not consider nor allow discovery on the private factors. See In re Vioxx Litig., supra, 395 N.J. Super. at 379-80.
However, in order to properly analyze the public factors in this case, and to determine whether New Jersey has any public interest in this litigation, the connection between the litigation and the forum must be known.*fn1
The Supreme Court has expressly addressed the timing of motions for forum non conveniens, explaining that they should be made neither too early nor too late, but "within a reasonable time after the facts or circumstances which serve as the basis for the motion have developed and become known or reasonably knowable to the defendant." Kurske v. Nissan Motor Corp., supra, 164 N.J. at 168 (quoting Lacey v. Cessna Aircraft Co., 932 F.2d 170, 177 (3d Cir. 1991)).
Here, the sole New Jersey connection to the litigation is the fact that Glory, the distributor of the machine, has its principle place of business in New Jersey. However, due to the absence of any discovery and no fact witness certifications in the record before us, we do not know if Glory's conduct consisted of something materially more than merely passing along the product as designed and manufactured by the manufacturer. In addition, defendants should be allowed to explore, through discovery limited to the forum non conveniens issue, whether the private factors are met as well. If, however, Glory did nothing more than pass along the product as the trial judge presumably assumed, then we would agree with his decision substantially for the reasons he expressed. If it appears that some relevant wrongful conduct by Glory occurred in New Jersey, those facts should be considered by the trial court when reevaluating the public and private factors to determine whether or not New Jersey is an appropriate forum.
We do note that the trial court indicated, without further discussion, that New York law would govern this claim. However, a choice of law issue has been raised by plaintiff, who contends that New Jersey law applies. Further analysis is needed on the choice of law issue before the trial court can consider choice of law as a factor in the forum non conveniens decision.*fn2
Reverse and remand.