DAVID ALMONTE v. CAPCO ENTERPRISES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0381-08T20381-08T2

DAVID ALMONTE,

Plaintiff-Appellant,

v.

CAPCO ENTERPRISES, INC.,

GLORY USA, INC.,

Defendants,

and

RELIABLE CASINO PRODUCTS &

SERVICES, INC.,

Defendant-Respondent.

_______________________________

 

Argued March 24, 2009 - Decided

Before Judges Fuentes, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10309-05.

Ted E. Trief argued the cause for appellant (Trief & Olk, attorneys; Mr. Trief, of counsel and on the brief).

Harry Steinberg argued the cause for respondent (Lester Schwab Katz & Dwyer, LLP, attorneys; Mr. Steinberg, on the brief).

PER CURIAM

In this products liability, negligence, and breach of warranty action, plaintiff David Almonte appeals from the August 15, 2008 order of the Law Division that dismissed his complaint on forum non-conveniens grounds. This is the second appeal in this matter from dismissal of plaintiff's complaint on grounds of forum non-conveniens. We previously reversed a prior dismissal of the complaint and remanded for the trial court to reconsider the motion leading to the dismissal of the complaint after the parties conducted discovery limited to the forum non-conveniens issue. Almonte v. Capco Enterprises, Inc., No. A-3738-06 (App. Div. January 24, 2008) (slip op. at 6). Because the procedural history and statement of facts were discussed at length in our prior opinion, it is unnecessary for us to detail them here. However, the following summary will place this opinion in context.

On July 22, 2005, plaintiff suffered personal injuries while employed by CDC Systems, Inc. (CDC), a New Jersey corporation with its principal place of business in Elizabeth. The accident occurred at CDC's facility in Long Island City, New York, while plaintiff was operating a coin wrapping machine.

At the time of the accident, plaintiff resided in the Bronx, New York. Defendant Capco Enterprises, Inc. (Capco), a Delaware corporation, manufactured the machine. Capco is no longer a viable enterprise. Defendant Reliable Casino Products & Services, Inc. (Reliable) is the successor to Capco and has its principal place of business in Nevada. Defendant Glory USA, Inc. (Glory) is the distributor of the machine, and is a California-based corporation with its principal place of business in New Jersey.

On December 30, 2005, plaintiff filed his complaint against Capco and Glory. Plaintiff filed an amended complaint on July 13, 2006, adding Reliable as a defendant. On November 20, 2006, before responding to discovery requests, Reliable filed a motion seeking to dismiss the complaint on forum non-conveniens grounds. On February 8, 2007, the trial court entered an order, supported by a written decision of February 5, 2007, granting the motion. On appeal, we determined that the dismissal was premature and directed the trial court to reconsider the motion after the parties conducted further discovery on the forum non-conveniens issue, including whether "Glory's conduct consisted of something materially more than merely passing along the product as designed and manufactured by the manufacturer." Id. at 6. We also stated that "[i]f, however, Glory did nothing more than pass along the product as the trial judge presumably assumed, then we would agree with his decision substantially for the reasons he expressed." Ibid.

Following discovery on remand, Reliable renewed its motion to dismiss the complaint. On August 15, 2008, the trial court entered an order, supported by an oral decision of the same day, granting the motion.

In deciding the motion, the trial court reasoned:

All the aforementioned, the deposition and discovery establish[] [that] the machine identified in this case . . . . was never physically located in New Jersey, was installed and serviced by New York Glory.

Accordingly, the reality of the circumstances remain[s] as heretofore. The accident took place in New York. The fact witnesses are in New York. The plaintiff is from New York. The machine has never entered [] the [S]tate of New Jersey. Reliable has not demonstrated that any evidence available in New York would be denied to it.

The Appellate Division, moreover, implicitly -- strongly implicitly agreed with this court's analysis of the public factors. And the circumstances gleaned from the discovery have not at all changed under the circumstances. The court, the appellate court, having reason[ed] because the action occurred in New York, it was incumbent that there be more than merely pass along the product, and that there be some relevant wrongful conduct that occurred in New Jersey.

The public interest factors weigh heavily in favor [of] dismissal. No New Jersey resident has been harmed. Again, the plaintiff is a resident of New York. The action occurred in New York. The only connection to the [S]tate of New Jersey is that one of the three defendants named in the respective counts of this complaint has simply . . . had a place of business in New Jersey.

. . . .

And for all of these reasons, the motion to dismiss based on forum non-conveniens being the same is hereby granted. . . .

On appeal, plaintiff argues that the trial court erroneously applied the forum non-conveniens principle in dismissing his complaint, shifting the burden on the motion to him to prove the correctness of his choice of forum, rather than requiring Reliable to overcome the presumption that his choice should govern. Plaintiff contends that the trial court failed to consider that he would be left without an alternate forum because the New York statute of limitations for instituting a personal injury action in New York had expired at the time of the motion. We agree.

The doctrine of forum non-conveniens is premised on the principle "that a court may dismiss a case when the forum selected by a plaintiff -- despite the existence of jurisdiction and venue -- is so inconvenient that it would be unfair to the defendant to conduct its defense of the claim in that location." Varo v. Owens-Illinois, Inc., 400 N.J. Super. 508, 518 (App. Div. 2008). Courts should consider the doctrine "in light of the primary danger against which it guards," that is, preventing a plaintiff from harassing or pressing his or her adversary by forcing the defendant to trial in an inconvenient forum. Id. at 519. The doctrine of forum non-conveniens is based on equitable principles. D'Agostino v. Johnson & Johnson, Inc., 225 N.J. Super. 250, 258 (App. Div. 1988), aff'd, 115 N.J. 491 (1989). The decision whether to dismiss an action based on forum non-conveniens grounds rests in the discretion of the trial court. Kurzke v. Nissan Motor Corp., 164 N.J. 159, 165 (2000). "[D]iscretion means legal discretion, in the exercise of which the trial judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly." Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App. Div. 1960).

We recently addressed the appropriate principles that a trial court should consider when ruling on a motion to dismiss based on forum non-conveniens grounds.

To guide the exercise of this discretion, courts generally apply a three step process. At the outset, a court determines whether there is an adequate alternative forum to adjudicate the parties' dispute. If another forum exists, the court then considers the degree of deference properly accorded the plaintiff's choice of forum. Finally, the court analyzes the private- and public-interest factors implicated in the choice of forum. Defendant, of course, bears the burden of persuasion on all elements of the analysis, and this burden is a heavy one. Dismissal is unwarranted unless the plaintiff's choice is shown to be demonstrably inappropriate, designed to subject the adversary to harassment, vexation, or clear hardship.

[Varo, supra, 400 N.J. at 519-20 (internal citations omitted).]

As stated, before a trial court dismisses an action based on forum non-conveniens grounds, the movant must demonstrate as "a necessary predicate to application of the . . . doctrine" that the plaintiff has access to an adequate alternate forum. Id. at 520. In deciding that issue, we stated that "[e]ssentially, there must be at least two forums in which defendant is amenable to process. If the defendant fails to carry this burden, the forum non-conveniens motion must be denied." Ibid. (internal citations and quotations omitted).

Here, at the time of oral argument on the second motion, the New York statute of limitations governing personal injury actions had expired, the accident having occurred on July 22, 2005. N.Y. C.P.L.R. 214(5) ("[A]n action to recover damages for a personal injury" must be commenced within three years). Accordingly, no alternate forum is available under which plaintiff may file his action, and as such, the trial court should have denied the motion.

Reliable counters that we should reject this argument "because, at the oral argument of its first motion to dismiss, at which plaintiff was present and which occurred on January 5, 2007, Reliable waived its right to raise the statute of limitations as a defense." Although we would agree if all defendants waived the statute of limitations defense, there is no evidence in the record that Glory has waived or will waive the defense if plaintiff files an action in New York. Indeed, we were informed at oral argument that Glory has not waived that defense. Accordingly, we reverse and remand to the trial court for further proceedings.

 
Reversed.

CDC Systems, Inc., is also known as Coin Depot Corporation.

See Kurzke, supra, 164 N.J. at 165-66 for the four private-interest factors and the four public-interest factors.

(continued)

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A-0381-08T2

August 17, 2009