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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document
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dispute.” Regardless of which nation’s law would apply, Luxalpha has not met its burden of
demonstrating that Luxembourg is an adequate alternative forum. Its motion to dismiss for
forum non conveniens thus fails, irrespective of the remaining factors. See Beana v. Woori Bank,
No. 05 Civ. 7018, 2006 WL 2935752, at *5 (S.D.N.Y. Oct. 11, 2006) (“While all factors are
important in the analysis, the requirement of an alternative forum is dispositive.” (citing Norex,
416 F.3d at 157)).
C. Luxalpha Has Not Met Its Burden to Show that the Private and Public
Interest Factors Weigh Heavily in Favor of Dismissal
Courts in the Second Circuit consider five private interest factors: “(1) ease of access to
evidence; (2) the availability of compulsory process for the attendance of unwilling witnesses;
(3) the cost of willing witnesses’ attendance; (4) if relevant, the possibility of a view of premises;
and (5) all other factors that might make the trial quicker or less expensive.” DiRienzo v. Philip
Servs. Corp., 294 F.3d 21, 29–30 (2d Cir. 2002) (internal citations omitted). Courts also
consider four public interest factors: “(1) administrative difficulties associated with court
congestion; (2) the unfairness of imposing jury duty on a community with no relation to the
litigation; 50 (3) the local interest in having localized controversies decided at home; and (4)
avoiding difficult problems in conflict of laws and the application of foreign law.” Id. at 31
(internal citations and quotations omitted). “[T]he defendant bears the burden to establish clearly
each factor . . . and to demonstrate that the balance tilts strongly in favor of the purported
alternative forum.” Beana, 2006 WL 2935752, at *5 (quoting PT United Can Co., Ltd., 138 F.3d
at 74. “District courts should . . . arm themselves with an appropriate degree of skepticism in
50 While the Trustee demanded a jury in his Amended Complaint and it is an open question as to whether a jury
might hear this matter, in Luxembourg there are no juries. (See Schiltz Decl. 17.) Instead, the case would be
heard by a three-judge panel. Id.
100