OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS BASED ON FORUM NON CONVENIENS AND DENYING AS MOOT DEFENDANTS’ MOTIONS TO DISMISS ON OTHER GROUNDS
Thе plaintiff, an American Citizen and resident of Indiana, has filed a forty-five- *790 count second amended complaint in this Court alleging various contract and tort theories arising from the termination of his employment by Agroservicios Pampeanos S.A., an Argentine company. The plaintiff has also sued Agroservicios’ parent company, Agrium, Inc., a Canadian corporation, and its United States affiliate, Agrium US, Inc. The defendants contend that the plaintiff was terminated because of poor job performance and misconduct during his tenure with Agroservicios in Argentina. They have filed motions to dismiss on various grounds including forum non conve-niens, which the Court now considers. The forum non conveniens motions were filed in May and June 2003, but the plaintiff responded with allegations that he required discovery to properly answer the motions. The Court allowed discovery limited to the issues of venue and pеrsonal jurisdiction, and the parties have filed several supplemental papers in support of their respective positions. The Court has reviewed the submissions and finds that the relevant law and facts have been set forth in the motion papers and that oral argument will not aid in the disposition of the motions. Accordingly, it is ORDERED that the motions be decided on the papers submitted. See E.D. Mich. LR 7.1(e)(2).
Based on the information before the Court, it appears that the plaintiff was employed by an Argentine company to perform work in Argentina. A reasonable alternate forum is provided by the Argentine national labor courts through a process that the plaintiff initially invoked in that country, and the public and private interests favor Argentina as the forum for resolution of this dispute. The Court, therefore, will grant the defendаnts’ motions to dismiss on the basis of forum non conveniens, deny the remaining motions to dismiss as moot, and conditionally dismiss the second amended complaint without prejudice.
I. Facts
Agrium, Inc. is a Canadian corporation headquartered in Calgary, Alberta, Canada. It manufactures agricultural products including fertilizers and distributes them throughout North America and South America. Agrium U.S. and Agroservicios Pampeanos S.A. are both wholly-owned subsidiaries. Each subsidiary has its own executive and managerial staff, board of directors, and human resources department. Agroservicios has no offices in the United States; Agrium U.S. has its headquarters in Colorado, and it operates a fertilizer plant in Reese, Michigan.
When the plaintiff was fired, he was on an expatriate assignment working at Agro-servicios in Argentina, although the question is disputed whether his employer at the time was Agrium US. He came to be employed by Agrium U.S. through a series of transfers and acquisitions. From April 1980 through March 1993, Mr. Duha was the farm center manager for Agrico Chemical Company in Darien, Wisconsin. During that time, Agrico was acquired by Crop Production Service, Inc. Over time, the plaintiff received promotions and transfers and worked in offices located in Burlington and Janesville, Wisconsin and Cobleskill, New York. From August 1991 through June 1994, the plaintiff was the manager for the Michigan division of Crop Production Service, Inc. and was located in Bay City, Michigan. It was during this period—in 1993—that Crop Production Service, Inc. was acquired by Agrium US. In July 1994, the plaintiff became director of operational projects for Crop Production Service, Inc.
On February 1, 1996, while still located in Bay County, Michigan, the plaintiff was transferred from Crop Production Servicе, Inc. to the regular staff of Agrium US. From January 1996 through July 1998, the plaintiff served as the marketing services *791 manager for Agrium International and resided in Bay City, Michigan. During that period, the plaintiff was paid by Agrium U.S. and traveled frequently to Argentina and Brazil.
The plaintiff was recruited by the defendants for a long-term assignment in Argentina, and he accepted that assignment beginning on August 1, 1998. The parties dispute whether the plaintiff was then employed by Agroservicios or Agrium US. The letter extending the offer was authored by Larry Collins, who was an officer at Agrium and Agrium US, arid it was printed on the stationery of Agrium International, which is a strategic business unit of Agrium. The plaintiff accepted the agreement in Argentina and lived there in rented quarters. There are documents that suggest that the plaintiffs employment with Agrium was formally terminated when he accepted the expatriate assignment, and the plaintiff acknowledges that he was on Agroservicios’ payroll. It also is undisputed that he became a manager at Agroservicios and assisted the defendants in the establishment and operation of retail sales organizations in Argentina. His job entailed setting up farm centers to sell the defendants’ products. The assignment was originally intended to last twenty-five months.
The plaintiff was terminated from his employment in Argentina on February 3, 2000. He claims that his termination was unlawful and that he was fired for reporting to the United States Justice Department and the Securities and Exchange Commission his employers’ illegal activities under the Foreign Corrupt Practices Act 15 U.S.C. § 78dd, et seq. His employers, however, contend that the plaintiff was discharged only after he offered to hire “the best hooker in Buenos Aires” for one of his coworkers as a “motivational reward” for a job well done, and he notified his superior that a bill for those “services” would be forwarded to management for payment.
On January 28, 2003, the plaintiff filed his complaint asserting thirty counts against the defendants, which included claims for breach of contract, breach of express covenant of good faith and fair dealing, breach of implied-in-law covenant of good faith and fair dealing, promissory estoppel, wrongful termination under both Michigan and Colorado public policy, tor-tious interference with contractual relationship, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of employment agreement for benefits and expenses, unjust enrichment, and quantum meruit. On April 28, 20,03, the plaintiff filed an amended complaint adding claims against the defendants for breach without just cause of a contract for indefinite term, breach with out just cause of a contract for fixed term, innocent misrepresentation, and silent fraud. He expanded on his allegations of fraud in a seconded amended complaint filed on May 10, 2004, which contains forty-five counts.
The defendants timely filed their motions for dismissal based on forum non conveniens, the Court conducted a preliminary scheduling conference pursuant to Federal Rule of Civil Procedure 16, and the parties have litigated several discovery motions over questions relating to disclosures under the limited scope of discovery authorized by the Court. The defendants contend that Argentine courts provide a reasonable alternate forum, the activity that forms the core of the disputed questions in this case occurred in Argentina, access in the United States to the sources of proof is limited since non-party Argentine witnesses cannot be compelled by American courts to give evidence, the applicable choice-of-law rules would require the application of Argentine law to resolve *792 the dispute, and the public interest favors litigating this dispute in a court not located in Michigan.
The plaintiff counters by claiming that his home base under the defendants’ expatriate agreement remained in Michigan throughout his residence in Argentina, and his employment agreement remained with either an American or Canadian company. Thus, the dispute in this case focuses on the relationship of an American citizen and his domestic employer over events that allegedly occurred in a foreign country during an expatriate assignment, and the consequences of his separation from employment, including severance benefits, to which he claims entitlement under United States law. The plaintiff observes that the relevant documents are all printed in English and the damage calculations would be in U.S. dollars. The plaintiff offered a list of potential witnesses by attaching to his response his answers to interrogatories identifying 135 persons, with ten located in South America, thirty-eight in Canada, and eighty-three in the United States with a few of those in Michigan. He states that a majority of the Argentine witnesses identified by the defendants are employed by them and many of those have not been interviewed, but since they are friends of his their testimony would not be helpful to the defendants; and the non-party Argentine nationals can give evidence in a United States court through letters rogatory.
II. Analysis
Motions to dismiss on several different grounds are now pending before the Court. The Court may consider any of these motions in the order it deems most expeditious; it need not resolve the issue of personal jurisdiction or failure to state a claim if the case can be disposed of on grounds of
forum non conveniens. See Kryvicky v. Scandinavian Airlines Sys.,
The defendants’ motions based on
forum non conveniens
present the question whether an American employee of an international corporation who is fired while on temporary assignment to a foreign country must litigate his wrongful termination claims in that foreign сountry when some of the witnesses who may have evidence of the employee’s job performance are located there. The plaintiffs choice of forum in such circumstances “should rarely be disturbed” absent a strong showing by a defendant supporting transfer or dismissal.
Gulf Oil Corp. v. Gilbert,
As this Court has previously observed, “[a]n action may be dismissed on the basis of
forum non conveniens
if the defendant demonstrates that (1) there is a reasonable alternative forum available and (2) the balance of private and public interests favors transfer.”
Ramakrishna v. Besser Co.,
A. Reasonable Alternate Forum
In assessing whether there is an adequate alternate forum available, the Court must determine if the plaintiff is legally and practically able to bring his claim in the other forum.
Ramakrishna,
The defendants contend that there is a reasonable alternate forum for the plaintiff in Argentina. An alternate forum generally exists when the defendant is “amenable to process” in the other jurisdiction.
Piper Aircraft Co.,
Moreover, it appears that the plaintiff already has resorted to the forum by seeking conciliation, which is a mandatory preliminary procedure leading to litigation. The plaintiff explained that through that process he reached a tentative accord with Agroservicios, but the settlement unraveled when he balked at a condition requiring execution of a release in favor of Agri-um and Agrium U.S. as well.
Although the plaintiff does not assail the adequacy of the Argentine judicial system to resolve his dispute with his former employer, he does argue that Argentina is an inadequate forum because he has a fear of safety there stemming from a remark by an unknown person overheard by one of his wife’s friends (the speaker was unconnected to any defendant), and armed guards once followed him years ago because of unspecified, threatened violence. A plaintiffs fear for his own personal safety, however, does not render a forum inadequate when the fear arises from an unsubstantiated assertion that his safety would be jeopardized by pursuing a claim, especially when the source of the threat is unrelated to the forum’s political or legal system.
See Mercier,
The Court believes that the defendants have demonstrated that Argentina is an adequate alternate forum.
B. Balancing the Prívate and Public Interests
Once a court finds that there is a reasonable alternate forum available to the plaintiff, it must then “consider the private interests of the litigants and factors of public interest in determining relative convenience of the forum chosen by the plaintiff as opposed to the available alternative forum.”
Dowling v. Richardson-Merrell, Inc.,
1. Private Interests
When balancing the relative merits of the alternate forum against the plaintiffs chosen forum, courts generally consider the following private interest factors: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for attendancе of witnesses; (3) the possible need to view the premises; and (4) all other practical problems that make a trial more convenient and less expensive.
Ramakrishna,
a. Relative Ease of Access to Sources of Proof
As previously noted, the essence of the plaintiffs wrongful termination claim is that the defendants had engaged in corrupt practices, including receipt of “kickbacks” by senior officials, and that they engaged in a cover-up operation that included terminating the plaintiff, who threatened to expose the wrongdoing. The defendants maintain that the plaintiff was fired for poor performance and misconduct, and the plaintiff, naturally, rejoins that his termination was pretextual.
*795 The defendants state that they are unaware of a single witness or source of proof on these issues located in the State of Michigan. Howеver, they are aware of at least thirty-one witnesses in Argentina that have information related to either the plaintiffs job performance as a manager at Agroservieios or the events giving rise to his termination, and some may have information about both. Through affidavit, the defendants identify the following individuals: Ronaldo Jose Delaney, Agroservicios’s former Human Resources Manager, who investigated the plaintiffs offer of an illicit inceptive to Manual Ron, participated in the plaintiffs termination, and investigated the missing items from the home in Argentina provided to the plaintiff by Agroser-vicios; a former Finance Manager, Walter Darvich, and former Information Technology Manager, Horacio Musante, who both made complaints about the plaintiff to his supervisors; a former Division Manager, Matías Kugler, and two former marketing employees, Luciano Martin and Martin Echeveste, who have information about plaintiffs job performance while employed with Agroservieios; and Carlos Gasparutti, the landlord of the house provided to the plaintiff by Agroservieios, who has information regarding missing appliances and other set-offs to the plaintiffs damages. In addition there are eighteen current or former farm center managers in Argentina that have information about the plaintiffs conduct, including his alleged “rewarding” of managers with sexual acts. The defendants state that the other witnesses that have knowledge of this incident are located in Alberta, Canada, but no relevant witnesses are in Michigan.
Of the 135 witnesses identified by the plaintiff only fifteen of the eighty-three American domiciled individuals arе located in Michigan. Of these, the plaintiff states that Bruce W. Crissman has knowledge of Agrium’s purchasing of equipment for Agroservieios, the arrangement of field training through the plaintiffs home office in Bay City, Agroservicios’s operations in Argentina, the excessive spending associated with those operations, and the plaintiffs efforts in getting Agroservieios up and running; Pat and Deb Dammer have knowledge of the plaintiffs maintenance of his home and home office in Bay City, Michigan; Felicia Drayer, the plaintiffs ex-wife, has knowledge of his employment with Agrium and his maintenance of a telephone and fax machine in his home to purchase equipment and supplies for Agri-um and Agroservieios; Lisa Foy, an employee of Independence Bank, who as a former employee of Mutual Savings Bank in Bay City has knowledge of the plaintiffs ongoing trips to Bay City during his time in Argentina; Stacy Hager, the plaintiffs stepdaughter, has knowledge of his employment with Agrium and maintenance of his “home office;” Mel Hahn has knowledge of plaintiffs efforts from his home office to arrange for training of Agroser-vicios personnel in Michigan; Kip Pavlawk has knowledge of the plaintiffs efforts from his home office in Bay City to arrange travel and training of Agroservieios staff in Michigan; Amy Restum has information regarding the plaintiffs employment benefits; Ron Restum, an Agrium U.S. employee, may have heard that the plaintiff was terminated for putting “prostitutes on the expense reports” and has knowledge of the plaintiffs efforts from his home office to train Agroservieios employees in Michigan; Don Rose, an employee at Hagen Ford, knew that the plaintiff purchased four trucks from him on behalf of Agrium and Agroservieios; Fran Sampson typed documents for the plaintiff while he worked in Bay City with her invoices being paid by Agrium; Ed Sowa, an Agri-um U.S. employee, has knowledge of Agri-um’s operations in Argentina as well as the plaintiffs employment with Agrium International through his offices in Bay City; *796 Rick Terbesh, an employee of Steven Van Lines, has information about the representations made to the plaintiff by Agrium regarding his move in 1998; and Jeanine Wells has information about the stress that the plaintiff was having due to the “situation” in Argentina.
Nearly all of the witnesses named by the plaintiff who are located in this jurisdiction have information limited to the plaintiffs maintenance of a “home office” in Bay City, Michigan during his expatriation. These are jurisdictional facts, but they do not relate to the substantive issues of his job performance, subsequent termination, or the defendants’ alleged misconduct. None of them has direct knowledge of the actual disputed events. The plaintiff does acknowledge that other witnesses located in Argentina have such information, but he claims that those individuals likely would testify in his favor and against the defendants. Nonetheless, the defendants contend that they would rely on the testimony of those witnesses, as outlined earlier. The defendants’ analysis of the plaintiffs discovery responses yielded a concession that a United States domiciled witness, Adrian Fuller, may have relevant information, but he now resides in Oklahoma. Fuller apparently negotiated some terms of the plaintiffs expatriate contract with the defendants when Fuller was working in Argentina. But the defendants note that Fuller did not author оr sign any document that the plaintiff claims gave rise to a contract; nor can he comment on the plaintiffs job performance in Argentina or any circumstances related to the plaintiffs discharge because Fuller was terminated in 1998 before the plaintiff began his expatriation.
The plaintiff also states that two other employees, Richard Gearhead and John Yokley, allegedly expressed reservations about his termination. Gearhead is located in Colorado and Yokley is located in Alberta, Canada. Both are employed by the defendants and presumably can be produced at any location to give evidence in the matters.
After reviewing the parties’ submissions, the Court is convinced that the majority of witnesses who have core information about the plаintiffs employment, performance, and termination are located in the alternate forum and could be contacted and summoned most easily there.
b. Availability of Compulsory Process for Attendance of Witnesses
Unlike an Argentine court, this Court will be unable to compel the attendance of any of the foreign non-party witnesses in this case for either trial or deposition testimony, which the defendants state will severely prejudice their ability to defend because several of these witnesses are “central” to their defense. Although the testimony of the non-party witnesses may not be necessary to defend against all of the plaintiffs claims, the testimony of these witnesses appears to be necessary to the defense of the claims of wrongful termination of plaintiff in violatiоn of public policy and the assertion of their just cause defense. The Supreme Court in
Gulf Oil
stated that “to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants.”
Gulf Oil Corp.,
According to Mr. Ferrante’s affidavit, under conf. Section 89, Law 18,345, an Argentine court can compel appearance of all non-party witnesses residing in Argentina. The plaintiff questions whether any non-party witnesses located in Argentina will assist the defendants in their defense of the plaintiffs claim since they are close friends of his, they likely would not retain records relative to frequenting brothels,
*797
and the defendants have yet to contact any of thеse witnesses. Further, the plaintiff claims that even if these non-party witnesses have relevant information they can be compelled to testify through the use of letters rogatory. However, of all the private interest factors, the relative ability of the forums to compel the attendance of significant unwilling witnesses at trial often is considered the most important factor, because the inability to present live testimony may result in an unfair trial and unfairness to the defendants.
See Mercier,
The majority of relevant witnesses with knowledge of the plaintiffs job performance and termination, including those whom the plaintiff may need to call in support of his own claims, appear to be in Argentina. Accordingly, the use of letters rogatory in this case will be cumbersome, costly, and should be avoided because of the potential for serious prejudice to the defendants. This important factor weighs heavily in favor of dismissal.
c. Other Problems That Make Trial Less Convenient and More Expensive
i. Document Discovery Would Be Impeded
Argentina has filed a Declaration under Article 23 of the Hague Convention that the “Argentine Republic will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known'in Common Law Countries.” Convention adopted at the Eleventh Session of the Hague Conference on Private International Law, Oct. 26, 1968, art. 23, 23 U.S.T. 2555. Therefore, if the case remains in Michigan, this method of document discovery will be unavailable to the defendants in this case. However, most of the relevant documents are in the possession of the defendants; consеquently this factor does not weigh heavily in favor of dismissal.
ii. Plaintiff is Familiar With Argentina’s Legal System
The defendants argue that the plaintiff is familiar with the alternate forum, fluent in the Spanish language, and he previously filed a lawsuit in Argentina against Agro-servicios. These facts, defendants claim, should favor dismissal.
See Iragorri v. Int’l Elevator, Inc.,
*798 Hi. Relative Size and Resources of the Parties
The plaintiff argues that the relative size and resources of the parties ought to be a consideration in assessing the inconvenience to the parties. He relies on
Steelcase v. Mar-Mol Co., Inc.,
iv. Hardship to the Parties
The plaintiff also argues that a forum change would impose severe financial and personal hardship on the plaintiff due to his extended absence from his employment that may put his job in jeopardy, as well as the cost of transporting witnesses. The plaintiff also claims that given the great difficulties that he has faced in securing records, the number of witnesses that will be required to establish his claim for unjust enrichment and quantum merit has been exacerbated. He states that instead of estаblishing what took place by the records in possession of the defendants, entities and individuals all over the United States will need to be contacted about their testimony and records resulting in an extraordinary expense if this matter is moved to Argentina. Finally, he asserts that all the relevant documents are in English and that most if not all of the witnesses speak English as their first language. Moreover, any damage calculation must be in dollars. Thus, these factors all strongly militate to the forum being in Michigan where the need and the costs associated with translations, interpreters and calculating exchange rates would be almost nonexistent.
See Bybee v. Oper der Standt Bonn,
Only the last argument weighs in favor of keeping this case in Michigan. Whether this case remains in Michigan or is transferred to Argentina, the plaintiff, who now lives and works in Indiana, will be required to leаve his home and job for extended periods of time to litigate this case.
Kryvicky,
Nevertheless, the costs of translating English documents and eventually English testimony into another language makes Argentina less convenient and thus weighs in favor of retaining the action.
See Nationsbank of Florida v. Banco Exterior de Espana,
The Court finds that the balance of private interests weigh in favor of the *799 alternate forum because the more weighty factors point to a transaction that took place there, and the majority of the relevant witnesses and other sources of proof are most likely located there. These factors counterbalance other factors that only slightly favor retaining the case in Michigan, which itself has no connection to the transactions or events alleged in the second amended complaint.
2. Public Interests
In a
forum non conveniens
motion, “[t]he public interests that must be balanced include any administrative difficulties of courts with clogged dockets; the burden of jury duty on people of a community having no connection with the litigation; the desirability of holding a trial near those most affected by it; and the appropriateness of holding a trial in a diversity case under a foreign state’s law.”
Ramakrishna,
a. Local Burdens
Although the plaintiff lived for a time in Bay City before he accepted his transfer to Argentina, he no longer has any connection with this jurisdiction and had none when he filed the complaint in this case. It is uncontested that the plaintiff maintained a “home office” in Bay City, Michigan, during his expatriation in Argentina, but that fact, although perhaps pertinent in considering a jurisdictional challenge, will not overcome the other factors that militate in favor of a
forum non conve-niens
dismissal.
See Munsell v. La Brasserie Molson Du Quebec Limitee,
The plaintiff asserts that there is a local interest in this matter because the policies that relate to the plaintiff also relate to Agrium U.S. employees in Michigan, and the plaintiff was a resident of Bay City, Michigan for several years. However, all of the activities and decision making giving rise to thе alleged wrongful termination occurred outside of Michigan, in either Canada or Argentina. Further, because the plaintiff is no longer residing in this state, Michigan citizens have very little interest in this litigation.
The plaintiff also claims that Michigan has a strong interest in the controversy because the conduct serving as the basis for the friction with the defendants and plaintiffs ultimate dismissal was his refusal to condone the corruption and accounting and record-keeping practices associated with Agrium’s operations in Argentina. He also states that Crop Production Services, a subsidiary of Agrium, is currently being investigated for falsifying records within the State of Michigan. The plaintiff cites
DiRienzo v. Philip Servs. Corp.,
The connection of this case to this jurisdiction is tenuous; this factor weighs in favor of dismissal.
b. Desirability of Holding a Trial Near Those Most Affected By It
It is undisputed that the employment contract that incorporated the expatriate agreement was negotiated in Canada, Argentina and perhaps the United States; it was signed by the plaintiff in Argentina; the plaintiff resided full-time in Argentina between August 1998 and June 2000; the employment contract was performed in Argentina; and Argentina is the location of the plaintiffs alleged wrongful termination and the defendants’ alleged wrongful conduct. The Court believes that Argentina is the forum that is most affected by this litigation, not Michigan. This factor also weighs in favor of dismissal,
c. Appropriateness of Holding a Trial in a Diversity Case in a Court Which is Familiar with the Governing Law
The parties did not include a choice of law or choice of forum clause in the employment documents. To determine the law that governs the dispute, the Court must apply the law of the State or country that has the “most significant relationship to the transaction and the parties.” Restatement (Second) of Conflict of Laws § 188(1) (1971);
see also Ramakrishna,
As to the plaintiffs tort claims, “Michigan presumes that the law of the forum applies unless there is a rational reason to displace it with the law of another location.”
Ramakrishna,
In this case, Argentina is the place where the retaliation and ultimate discharge occurred, as well as the conduct leading to the discharge. The varied domiciles, residences and citizenships of the parties renders that factor nondispositive. However, the parties vigorously dispute the locus of “center” of the relationship. *801 The plaintiff insists that the relationship is centered in Michigan, although it appears that the very nature of the expatriate agreement focused the relationship on the foreign country. The plaintiffs tort claims are inextricably bound to and arise from the employment relationship, which at the time was centered in Argentina. It is likely, therefore, that an American court applying the “form of interest analysis” would favor the law of Argentina as the rules for decision of the tort claims.
This Court observed in
Ramakrishna
that “applying the law of another country is quite different from applying the law of another state” and, therefore, weighed that factor in favor of dismissal.
Ramakrishna,
III. Conclusion
The Court finds that the defendants have met their burden of demonstrating that there is a reasonable alternative forum in Argentina for the adjudication of the plaintiffs claims, and both the private and public interest factors weigh in favor of the alternate forum. The Court is mindful that a minor portion of the plaintiffs second amendеd complaint contains allegations that defendants other than Agroservicios interfered with the plaintiffs business opportunities after he returned from Argentina, and Argentina may not be an appropriate forum for those claims. However, the plaintiff may sever those claims and file them in an appropriate American forum, although likely not in Michigan, if he chooses. The Court, therefore, finds that dismissal is appropriate provided the defendants satisfy conditions that will insure the equitable allocation of the expenses of litigating these multinational claims.
Accordingly, it is ORDERED that the motion by defendants Agrium US, Inc., and Agrium, Inc. to dismiss based on forum non conveniens [dkt# 17] is CONDITIONALLY GRANTED.
It is further ORDERED that the motion by defendant Agroservicios Pampeanos S.A. to dismiss [dkt# 21] is CONDITIONALLY GRANTED IN PART on the ground of forum non conveniens and DENIED IN PART as moot in all other respects.
It is further ORDERED that the defendants, Agroservicios Pampeanos S.A., Agrium, Inc., and Agrium US, Inc., and each of them, shall file a statement certifying that they will 1) accept Argentine jurisdiction and service of process; 2) waive any statute of limitations defense; 3) make all of the witnesses under their control available to testify in Argentina; 4) translate, at their expense, all relevant documents into the Spanish language; 5) allow discovery in the Argentine court of any materials that would be available under the Federal Rules of Civil Procedure in a United States Court; and 6) pay any judgment rendered by the Argentine court, subject to their right to appeal under Argentine law.
It is further ORDERED that the defendants shall file such certificate on or before October 28, 2004. Upon the filing of the certificate, the Court will enter an unconditional order of dismissal without prejudice.
It is further ORDERED that the motion by defendants Agrium US, Inc., and Agri-um, Inc. to dismiss pursuant to Rule 12(b)(2) and to dismiss counts 17-22; 27,-29, and 38 of first amended complaint [dkt# 16] is DENIED as moot.
It is further ORDERED that the plaintiffs motion for an in camera inspection [dkt# 115] is DENIED as moot.