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Almonte v. CAPCO Enterprises

January 24, 2008

DAVID ALMONTE, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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