The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
This matter comes before the Court upon the oral Report and Recommendation of Magistrate Judge Shwartz, read into the record on May 5, 2008 (D.E 17). The Court received objections to her report from plaintiff SRS, Inc. ("SRS") (D.E. 16), and has reviewed her recommendations denovo. For the reasons expressed in Magistrate Judge Shwartz's oral opinion and for those contained herein, the Report and Recommendation of Magistrate Judge Shwartz is adopted and incorporated as the Opinion of this Court. Accordingly, this Court denies defendant Airflex Industrial, Inc.'s ("Airflex") motion to dismiss for lack of personal jurisdiction and grants defendant's motion to dismiss based upon forum non conveniens.
SRS objects to the recommendation that the case be dismissed for forum non conveniens on the following grounds:
1. The Magistrate Judge misconstrued plaintiff's position as to the choice-of-forum clause. Defendant does not deny that the choice of forum clause exists in one document; plaintiff contends that it never executed that document or expressly assented to the choice of-forum language.
2. Whether the plaintiff assented to the choice-of-forum language is a question of fact which cannot be decided from conflicting affidavits; a hearing on that issue should have been held.
3. The weight given to the choice-of-forum language by the Magistrate Judge is excessive under Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22 (1988).
4. The Magistrate Judge's consideration of the "burden" of jury duty is entirely inapposite; neither party has demanded trial by jury.
5. The sole affidavit submitted in support of defendant's application contains no facts relating to the forum non conveniens aspect of the application other than the alleged agreement as to the choice of forum language; the Magistrate Judge's conclusions as to the various "balancing tests" are without any factual basis in the record.
6. The Magistrate Judge's conclusion that there is no alternative to recommending dismissal of the case so that it can be filed in the appropriate forum is incorrect; defendant's application can be treated as an application for transfer of venue under 28 U.S.C., § 1404, and, if there is any factual basis for finding that New York is a more convenient forum, the case should be transferred to either the Federal District Court for the Southern District of New York or the Federal District Court for the Eastern District of New York; if the latter transfer were made and a view of the project were desirable, the view could be had in the same courthouse in which the matter would be tried.
This case arises from a contract between SRS and Airflex. Airflex is a manufacturer, fabricator, and installer of custom architectural metalwork, which has its only offices in Farmingdale, New York, located in Suffolk County on Long Island, and conducts no business in New Jersey. SRS, a New Jersey corporation with offices located in Metuchen, New Jersey, engages in design, manufacture, and installation of railings and decorative metalwork. Starting in 2002, Airflex worked as a metalwork subcontractor on the construction of a new federal courthouse for the U.S. District Court for the Eastern District of New York, located at Cadman Plaza, Brooklyn ("the Brooklyn Project"). SRS served as subcontractor to Airflex for the Brooklyn Project, furnishing decorative metal railings and providing installation services. According to SRS, however, Airflex failed to pay the contract price to SRS. When these payment-related disputes arose in 2007, SRS filed suit in U.S. District Court for the District of New Jersey. Airflex moved to dismiss SRS's complaint on the bases of personal jurisdiction and forum non conveniens. A forum selection clause designating the Supreme Court of New York, Suffolk County, contained in paragraph 19 of an Airflex purchase order that was allegedly issued to SRS, is central to Magistrate Judge Shwartz's recommendation that the case be dismissed for forum non conveniens.
Airflex states that it invited material suppliers and sub-subcontractors to bid on portions of the Project, by which process it negotiated price and terms for subcontracted work with SRS for the Brooklyn Project. SRS tells it differently: that Airflex specifically sought SRS's services in 1995 and thereafter on other projects not related to this action. SRS states that Airflex first solicited its services for the Brooklyn Project in 2000, and, after protracted negotiations through writings and in-person meetings, SRS made and finished the railings in New Jersey and installed them in Brooklyn, New York. SRS says that only four written purchase orders were used in the course of the Brooklyn Project, that only one of these contained the content from the reverse side, and that none of the ones SRS actually received had the forum selection clause printed on it. SRS contends that it never specifically agreed to resolve disputes in any particular court.
In contrast, Airflex states that it issued purchase order number 18464 to SRS, which, on the reverse side, contained a forum selection clause stating: "Disputes, shall they occur, will be settled in Suffolk County Supreme Court, Riverhead LI." Airflex counters SRS's denial that it ever received the purchase order containing the forum selection clause by observing that SRS included the full purchase order (with ...