United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO DISMISS
F. DENNIS SAYLOR, IV, District Judge.
This is a claim for the return of property. Plaintiff Nordost Corporation, a manufacturer of high-end technology cables, contends that a former employee, defendant Lars Kristensen, failed to return valuable equipment loaned to him in connection with his employment. The complaint alleges claims for breach of contract, property had and received, and conversion. Jurisdiction is based on diversity of citizenship.
Defendant has moved to dismiss the complaint for forum non conveniens, contending that the appropriate location for adjudication of this dispute is Denmark. For the reasons set forth below, the motion will be denied.
Unless otherwise noted, the following facts are presented as stated in the complaint.
Nordost, a Massachusetts corporation, manufactures high-end technology cables, such as speaker cables, video cables, and analog and digital interconnects at a factory in Holliston, Massachusetts. In January 1992, Kristensen, a citizen and resident of Denmark, began working for Nordost as a freelance employee. According to Kristensen, he had occasion to travel to the Nordost factory in Holliston during his employment, but mainly communicated and dealt with Nordost's vice president of international sales, Johann Graham, a resident of the United Kingdom. (Def. Mem., Ex. A, Kristensen Aff. ¶ 7). Nordost contends that Kristensen traveled to Massachusetts four to five times per year to visit Nordost's office, staying approximately ten days on each visit. (Pl. Mem., Ex. A, Reynolds Aff. ¶ 5). According to Nordost, Graham arranged for Kristensen's visits to various international accounts, not for provision of and terms for loaned equipment. ( Id. ¶ 7). Also, the paperwork associated with Kristensen's employment is located at its office in Holliston. ( Id. ¶ 4).
Beginning in 2004, Nordost occasionally loaned Kristensen various equipment to use for demonstration and sale of its products. Nordost contends that it did so with the express understanding that Kristensen would use the equipment solely on behalf of and for the benefit Nordost and that he would return the equipment upon request. According to Nordost, the discussions of those terms occurred in Massachusetts. (Reynolds Aff. ¶ 6). The individuals who arranged for the equipment loans (and who would testify on Nordost's behalf), Amy Hansen and Paul Ritchotte, work at the Holliston office. So do Nordost's president, Joe Reynolds, and director of engineering, Bill Mitchell, who would testify about Kristensen's use of Nordost products. ( Id. ¶ 7). The parties dispute whether the equipment samples were delivered to Kristensen in Denmark or in the United States. (Kristensen Aff. ¶ 8; Pl. Mem. at 8).
On December 21, 2012, Kristensen terminated his employment with Nordost. At that time, he possessed a substantial amount of Nordost equipment, which the company demanded he return without delay. Kristensen allegedly gave back some, but not all, of the equipment to Nordost. Kristensen contends that he gave the equipment to Rune Skov, a Nordost employee, in February or March 2013, and that he has no additional equipment that belongs to Nordost. (Kristensen Aff. ¶¶ 10-12). The witnesses who saw Kristensen convey equipment to Skov, as well as Skov himself, reside in Denmark. ( Id. ¶ 13). Nordost does not dispute that Kristensen returned some equipment to Skov, but believes that Kristensen still possesses much of the equipment or that he has sold some or all of it and retained the proceeds of those sales. (Reynolds Aff. ¶ 10).
In December 2013, Nordost sent a demand letter to Kristensen, enclosing an inventory report of the outstanding equipment. It now estimates that the retail value of the equipment is more than $200, 000.
On January 23, 2014, Nordost filed a complaint in this Court. On April 18, 2014, Kristensen filed a motion to dismiss on the ground of forum non conveniens.
Under the common-law doctrine of forum non conveniens, a court may dismiss a case "when an alternative forum has jurisdiction to hear [the] case, and... trial in the chosen forum would establish... oppressiveness and vexation to a defendant... out of all proportion to plaintiff's convenience, or... the chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems." Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 429 (2007) (internal quotation and citation omitted). When a plaintiff selects its home forum, as here, it "should not be deprived of it absent a clear showing' of either oppressiveness and vexation' or evidence that the chosen forum is inappropriate.'" Adelson v. Hananel, 510 F.3d 43, 53 (1st Cir. 2007) (quoting Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)). While defendant does bear "a heavy burden" in overcoming the presumption in favor of plaintiff's chosen forum, Sinochem Int'l Co., 549 U.S. at 42, "a citizen's forum choice should not be given dispositive weight and dismissal should not be automatically barred when a plaintiff has filed suit in his home forum." Interface Partners Int'l Ltd. v. Hananel, 575 F.3d 97, 102 (1st Cir. 2009) (internal quotations and citations omitted).
Dismissal on the ground of forum non conveniens requires that a defendant establish (1) that there is an "adequate alternative forum" and (2) that "considerations of convenience and judicial efficiency strongly favor litigating the claim in the alternative ...