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Amin Yousef and Khwala Yousef v. General Dynamics Corporation and Hertz Inc

April 11, 2011

AMIN YOUSEF AND KHWALA YOUSEF, PLAINTIFFS-RESPONDENTS,
v.
GENERAL DYNAMICS CORPORATION AND HERTZ INC., DEFENDANTS, AND
GENERAL DYNAMICS-ORDINANCE AND TACTICAL SYSTEMS, INC., AND DAVID EDMONDS, DEFENDANTS-APPELLANTS.
CRANE D. ROBINSON AND JEANNIE ROBINSON, PLAINTIFFS,
v.
GENERAL DYNAMICS CORPORATION, HERTZ CAR RENTALS, HERTZ INTERNATIONAL, AND GEICO INSURANCE COMPANY, DEFENDANTS,
AND GENERAL DYNAMICS-ORDINANCE AND TACTICAL SYSTEMS, INC., AND DAVID EDMONDS, DEFENDANTS.



On appeal from the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice Albin

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Yousef v. General Dynamics Corp.

(A-88-09)

Argued October 26, 2010

Decided April 11, 2011

JUSTICE ALBIN, writing for a unanimous Court.

JUSTICE ALBIN

The issue on appeal is whether the trial court abused its discretion in denying defendants' motion to dismiss plaintiffs' action on grounds of forum non conveniens.

Amin Yousef, Crane Robinson, and Lawrence Raniere were New Jersey residents and civilian employees of the United States Army's Armament Research Center in New Jersey. All three were working on a project with defendant General Dynamics-Ordnance, a company incorporated in Virginia, with its principal place of business in Florida, and doing business in New Jersey. Yousef, Robinson, Raniere, and representatives of General Dynamics-Ordnance, including defendant David Edmonds of Florida, gathered together in South Africa on a business project. During the trip, Edmonds rented a van from a South African company. Edmonds subsequently drove Yousef, Robinson, and Raniere through a stop sign, causing a collision in which plaintiffs Yousef and Robinson suffered serious injuries. Yousef received medical care in South Africa for approximately one month and was then transported to New Jersey, where he has undergone years of treatment for a serious brain injury. Robinson required surgery in South Africa and returned to the United States for treatment of neck and leg injuries.

The police did not go to the accident scene on the day of the collision. The identity of the other driver is unknown. An accident report prepared by Raniere for the South African authorities twelve days after the collision was produced in pretrial discovery. The report states that Edmonds ran a stop sign, that the road contained several warnings of the impending intersection, and that the stop sign was partially obscured. Defendants produced two affidavits of a South African tow-truck operator who stated that the sign was bent in a manner that made it hard to notice and that numerous accidents occur at the intersection. Although the intersection was converted into a four-way stop after the accident, photographs pre-dating the changes were also produced. Whether Yousef and Robinson were wearing seatbelts is a point of contention. Evidence produced in pretrial discovery includes Robinson's statement that his seat lacked a seatbelt, and a conflicting owner's manual. The van was sold after the accident and has not been located.

Under South African law, a judge decides whether a defendant is negligent and, if so, the amount of damages; South Africa's Road Accident Fund is liable for the first $3000 in automobile negligence cases; compensatory-damage awards are less generous; liability and damage claims are typically tried separately; and subsequent remedial measures by a party may be admissible to show prior negligence. Moreover, South Africa has opted out of the Hague Convention article that would have required it to honor pretrial discovery requests from foreign jurisdictions; nevertheless, under its own laws, South Africa may honor requests for the production of evidence by any foreign jurisdiction. Finally, if tried in New Jersey, defendants would be unable to implead the South African municipality.

Yousef and Robinson filed personal-injury complaints in New Jersey alleging that Edmonds, an agent of General Dynamics-Ordnance, operated the van negligently by failing to heed the stop sign. Both plaintiffs seek compensatory damages. Defendants moved to dismiss the negligence action on the basis of forum non conveniens. The trial court denied the motion. After a remand by the Supreme Court to consider defendants' interlocutory appeal, the Appellate Division affirmed the trial court's decision.

The Court granted defendants' motion for leave to appeal. 202 N.J. 41 (2010).

HELD: The trial court properly weighed the public-interest and private-interest factors in finding that defendants failed to carry their burden of demonstrating that New Jersey is a "demonstrably inappropriate" forum. Therefore, the trial court did not abuse its discretion in denying the forum non conveniens motion.

1. The equitable doctrine of forum non conveniens empowers a court to decline jurisdiction when a trial in another available jurisdiction will best serve the convenience of the parties and the ends of justice. Application of forum non conveniens is left to the sound discretion of the trial court, applying the following guidelines: (1) the plaintiff's choice of forum is entitled to preferential consideration; (2) any alternative forum must be adequate, and defendant must be "amenable to process" in that forum; and (3) the private-interest and public-interest factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), should be weighed in deciding whether the plaintiff's choice of forum is "demonstrably inappropriate" and whether there is an adequate alternative forum. The defendant bears the burden of establishing that the plaintiff's choice of forum is "demonstrably inappropriate." (pp. 15-19)

2. The Court does not need to determine whether South Africa is an adequate alternative forum because resolution of the forum non conveniens issue turns on an analysis of the Gulf Oil private- and public-interest factors. (pp. 19-20)

3. Gulf Oil's private-interest factors are, at best, in equipoise between the parties. Gulf Oil's access-to-evidence factor does not clearly weigh in defendants' favor because much of the relevant evidence is in the United States and it seems likely that evidence in South Africa can be secured for presentation in a New Jersey courtroom. In addition, the record does not suggest that the cost of trying this case in New Jersey would be any greater than in South Africa. Finally, although the inability to implead the South African municipality is a formidable obstacle for the defense, equitable remedies can ensure that defendants will not be liable for damages that the municipality would otherwise be responsible to pay. (pp. 20-24).

4. Regarding the Gulf Oil public-interest factors, although the alleged negligent act occurred outside this country, New Jersey's interests are direct and concrete because this case concerns injuries caused to New Jersey residents by a corporate entity doing business in this Sate. Moreover, a New Jersey jury is not ill-suited to hear a case between residents of this State and a company doing business here. In addition, South Africa's interest in ensuring that individuals drive safely on its roadways can be vindicated in New Jersey. Furthermore, because the relevant intersection has already been reconfigured, this litigation would seem to have little effect on South Africa's interest in ensuring adequate design and maintenance of its roadways. (pp. 24-26)

5. This case is distinguishable from Estate of Thomas v. Toyota Motor Corp. Worldwide, 545 F.3d 357 (6th Cir. 2008), because, here, a trial in South Africa appears to be at least as burdensome -- if not more burdensome -- than one in the United States, and the defendants are attempting to upend the sound discretion invested in the trial court. Defendants' reliance on Kurzke v. Nissan Motor Corp. in U.S.A., 164 N.J. 159 (2000), is also unavailing because the courts below faithfully applied the principals set forth in that case. New Jersey has vital interests at stake. A forum non conveniens dismissal should not be granted on a mere balance of conveniences, or when a trial in the alternative forum will present as many difficulties as the plaintiff's presumptive choice. (pp. 26-31)

6. There are many equitable remedies available to ensure that defendants receive a fair trial. On remand, the trial court is authorized to consider relaxing the Rules of Evidence to admit relevant, reliable evidence. In addition, if de bene esse depositions are possible, failure to participate will not be grounds for challenging their admissibility. The trial court may also apportion costs to see that justice is done. Finally, although the South African municipality cannot be impleaded and New Jersey law only permits allocation of fault between parties, the trial court, through the use of its equitable powers, may consider allowing the jury to apportion fault between defendants and the judgment-proof municipality for the purpose of determining a just damages award. (pp. 31-37)

The judgment of the Appellate Division is AFFIRMED,and the matter is REMANDED to the trial court for proceedings consistent with the Court's opinion.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, RIVERA-SOTO, and HOENS, and JUDGE STERN (temporarily assigned) join in JUSTICE ALBIN's opinion.

Argued October 26, 2010

JUSTICE ALBIN delivered the opinion of the Court.

The issue before us is whether a New Jersey court is the proper forum for a personal-injury lawsuit involving an automobile accident that occurred in the Republic of South Africa. At all relevant times in this lawsuit, plaintiffs resided and worked in New Jersey, and the corporate defendant was doing business in New Jersey with plaintiffs' employer. On a business trip to South Africa, the corporate defendant's employee -- also a defendant and a resident of Florida -- was driving a van carrying the two plaintiffs. He allegedly ran a stop sign, causing a collision in which plaintiffs suffered serious bodily injuries. All the known eyewitnesses to the accident reside in the United States.

Defendants sought to dismiss the negligence action brought by plaintiffs in this State on grounds of forum non conveniens. Under the doctrine of forum non conveniens, a court using its equitable power can decline to exercise jurisdiction over a defendant if that defendant can demonstrate that the plaintiff's choice of forum is "demonstrably inappropriate." Kurzke v. Nissan Motor Corp. in U.S.A., 164 N.J. 159, 171-72 (2000). The trial court in this case found that defendants did not satisfy their burden of showing that New Jersey was an inappropriate forum in which to litigate this negligence action. The Appellate Division affirmed.

We conclude that the trial court properly weighed the public-interest and private-interest factors in finding that New Jersey is not a "demonstrably inappropriate" forum and therefore did not abuse its discretion in denying the forum non conveniens motion. See id. at 165-66. Because forum non conveniens is an equitable doctrine, to lessen the disadvantages of not allowing this case to go forward in South Africa, the trial court has equitable powers at its disposal to ensure that defendants receive a fair trial in New Jersey.

I.

Background Facts

In 2006, plaintiffs Amin Yousef and Crane Robinson lived in New Jersey and were civilian employees of the United States Army in its Armament Research, Development and Engineering Center (Armament Research Center) at the Picatinny Arsenal. One of their colleagues at the Armament Research Center was Lawrence Raniere. In September 2006, all three were working on a project with General Dynamics-Ordnance and Tactical Systems, Inc. (General Dynamics-Ordnance), a United States government contractor doing business in New Jersey.

That same month, Yousef, Robinson, Raniere, and representatives of General Dynamics-Ordnance met in South Africa. The purpose of their trip was to test and procure certain munitions of the Denel Corporation located in Potchefstroom, a town about seventy-five miles from Johannesburg. One member of the General Dynamics-Ordnance team was defendant David Edmonds.

During the trip, Edmonds rented a Volkswagen van from Alisa Car Rentals Ltd., a South African corporation. On September 16, at approximately 6:00 p.m., Edmonds was driving Raniere, Yousef, and Robinson back to their hotel in the van. Raniere occupied the front-passenger seat, Yousef and Robinson the rear seats. While traveling on a road with a posted speed limit of sixty miles per hour, Edmonds apparently did not see a stop sign and other signs leading into an intersection. As the van crossed the intersection without slowing down, it was broadsided by a Corolla traveling at a high speed on a perpendicular road that was not controlled by a stop or yield sign. The impact caused the van to flip over and skid on its side for approximately one hundred feet until it came to a rest. Yousef was thrown from the van on impact and suffered devastating head injuries. Robinson, who remained in the van, was injured to a lesser extent. Both Edmonds and Raniere were wearing seatbelts and walked from the crash without any serious injuries.

The police did not come to the accident scene that day. Although the driver of the Corolla stopped after the collision, it appears that no one recorded his name or address, and therefore his identity remains a mystery. An ambulance arrived and took Yousef and Robinson to a local hospital. Yousef received medical care in South Africa through the latter part of October 2006. He was then transported to New Jersey where he received treatment for a serious brain injury that required him to use a wheelchair. Robinson underwent surgery at the South African hospital to remove glass embedded in his left arm and returned to the United States for treatment of a spinal injury to his neck and nerve damage to his left leg.

The Complaint

In September 2007, plaintiffs Yousef and Robinson filed separate personal-injury complaints in the Superior Court, Law Division, Bergen County, alleging that defendant Edmonds, an agent of defendant General Dynamics-Ordnance, operated the van negligently by failing to heed the stop sign, thereby causing the intersection collision. As a result of the accident, both claim they have suffered serious bodily injuries and seek compensatory damages. In addition, plaintiffs' wives filed loss-of-consortium claims.*fn1

Both plaintiffs are residents of New Jersey, Yousef living in Budd Lake and Robinson living in Oxford. Their place of work was the Armament Research Center at the Picatinny Arsenal in New Jersey; their employer was the United States Army. Edmonds is domiciled in Florida. He was working with General Dynamics-Ordnance, which was doing business in this State with the Army on a project that brought both plaintiffs and defendants to South Africa. General Dynamics-Ordnance is incorporated in Virginia with its principal place of business in Florida.

Pretrial Discovery

In February 2009, defendants moved to dismiss the action on grounds of forum non conveniens, essentially arguing that a South African court was the more appropriate forum for deciding the issues to be resolved in this case.*fn2 The parties sharply dispute the "facts" that were adduced in discovery. To provide ...


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