Defendants Fail to Meet Burden on Forum Non Conveniens Motion

On March 10, 2022, the First Department issued a decision in Wormwood Capital LLC v. Mulleady, 2022 NY Slip Op. 01526, holding that defendants had failed to meet the burden necessary to justify a forum non conveniens dismissal, explaining:

Defendants did not establish that in the interest of substantial justice, this action should be heard in another forum, namely, Switzerland. Adjudication of plaintiffs’ claims, which are undisputedly governed by Swiss law, will not place an undue burden on New York courts. New York courts are frequently called on to apply the laws of foreign jurisdictions and in this case, there is no indication that the relevant law, which is from only one foreign jurisdiction, is in dispute or is distinctly abstruse. That plaintiffs seek certain nonmonetary relief that may not be available or enforceable in Switzerland does not cut in favor of dismissal because defendants can seek to limit the damages sought and plaintiffs are now willing to withdraw their requests for nonmonetary relief as against Phoenixus.

Defendants do not claim that litigation in New York will cause them any hardship and although this matter could be litigated in Switzerland, Swiss courts do not permit trial by jury, which could pose some hardship to plaintiffs. Moreover, most of defendant-board members are residents of New York and none are residents of Switzerland. The allegations in the complaint make clear that this action has a substantial nexus to New York and at this point, it appears that the majority of the witnesses and evidence will be located in the United States, principally New York.

(Internal citations omitted).

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