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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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assessing whether the defendant has demonstrated genuine inconvenience and a clear
preferability of the foreign forum.” Iragorri, 274 F.3d at 75.
1. Luxalpha Has Not Shown that the Private Interest Factors Favor
Litigation in Luxembourg
The sine qua non of Luxalpha’s argument with respect to the private interest factors is the
assertion that “[t]he majority of the witnesses are likely located in Europe.” (Luxalpha Mot. at
21 (emphasis added).) Having failed to identify even one of these potential witnesses, Luxalpha
has not met its burden to show that the private interest factors favor litigation of the Trustee’s
claims in Luxembourg. See Nelly de Vuyst, 2012 WL 246673, at *3 (“Defendants do not cite to
any factual evidence in support of their arguments. They do not name any witnesses who would
be inconvenienced by travel to New York or documents which would have to be transported to
the courthouse”); Haywin Textile Prods., Inc. v. Int’l Fin. Inv. & Commerce Bank, Ltd., 137 F.
Supp. 2d 431, 436 (S.D.N.Y. 2001) (“[Defendant] has failed to identify with specificity the
witnesses who will be necessary to litigate this action but whose presence in a New York court
will be difficult to secure. Such identification is generally required for a forum non conveniens
dismissal.” (internal citation omitted)). Luxalpha, moreover, could not meet its burden even if it
did identify specific witnesses located in Luxembourg. See Zim Integrated Shipping Servs., Ltd.
v. Belco Res., Inc., No. 07 Civ. 5861, 2008 WL 1959041, at *4 (S.D.N.Y. May 2, 2008) (holding
that dismissal is not warranted if “[w]herever the trial takes place, witnesses will be forced to
travel to provide testimony” (internal quotations omitted)); see also Eclaire, 375 F. Supp. 2d at
265 (“In this day and age of rapid transportation and instant communications, the convenience of
immediate physical proximity to documents, testimony, and other proof has become of less
consequence to a forum non conveniens analysis, especially when, as here, two large and
sophisticated parties are involved.”); Calavo Growers of Cal. v. Generali Belgium, 632 F.2d 963,
101