RE-ISSUED OPINION
THIS OPINION IS BEING RE-ISSUED FOR THE PURPOSES OF PUBLICATION
Typographical corrections entered have no bearing on the holding and dicta contained herein
This matter is before the Court on Defendants’ motions to dismiss Plaintiffs’ complaint (hereinafter “Complaint”) on the grounds of forum non conveniens. 2
The matter was transferred to the undersigned on August 7, 2006. This Court has reviewed all documents filed and submitted, and has decided the pending motions without oral arguments pursuant to Rule 78 of Civil Procedure. For the following reasons, Defendants’ motions to dismiss will be granted.
BACKGROUND
Plaintiffs are Dutch attorneys acting as bankruptcy trustees after being appointed by a Dutch court to represent the estate of (a) KPNQwest N.V. (hereinafter “KPNQwest,” a Dutch corporation established as a joint-venture between Konink-lijke KPN N.V., a telecommunication company having its seat in Hoofddorp, Netherlands, and Qwest, a Delaware-incorporated entity having its principal place of business in Denver, Colorado), and (b) KPNQwest’s wholly-owned Netherlands-based and European subsidiaries. 3 See Compl. ¶¶ 1, 3, 20-22.
Plaintiffs brought this action against four identified Defendants, namely, Qwest, two former KPNQwest’s directors and KPNQwest’s former CEO.
4
See id.
¶¶ 22-25. In their Complaint, Plaintiffs alleged
In response to Plaintiffs’ Complaint, Defendants’ Motion asserts that (1) one group of Plaintiffs’ allegations is, effectively, a Racketeer Influenced and Corrupt Organizations (“RICO”) claim “expressly barred by the Private Securities Litigation Reform Act of 1995 (‘PSLRA’),” 18 U.S.C. § 1964(c), Mot., Mem. at 1, and (2) all other claims are
Dutch law claim[s that belong in] the Netherlands, where KPNQwest was organized and headquartered[,] and where a Dutch court oversees its bankruptcy.... The events preceding KPNQwest’s bankruptcy are already the subject of a separate litigation, an arbitration, and an investigatory proceeding that are all pending in the Netherlands.
Mot., Mem. at 2. Defendants further state that, regardless of whether or not the RICO claim is deemed viable,
6
Defendants are entitled to dismissal on the grounds of forum non conveniens since: (1) “this case is about the demise of a Dutch company that did business in the Netherlands, not in New Jersey,”
id.
at 10; (2) “the majority of the relevant documents and witnesses are in the Netherlands,”
id.;
(3) “the Netherlands [has interest in] resolution of the issues relating to the causes of KPNQwest’s bankruptcy, [and] certain Dutch KPNQwest[’s] shareholders have [already] initiated proceedings [against the Defendants named in this action, as well as against numerous Dutch parties, like KPNQwest’s accountants, auditors,
DISCUSSION
I. Doctrine of Forum Non Conveniens
Forum non conveniens is Latin for “inconvenient forum.” The common law doctrine of forum non conveniens arose from the doctrine of forum non competens developed in Scotland in the early 19th century as a discretionary device designed to allow trial courts to decline to exercise jurisdiction when it appeared that the convenience of the parties and the interests of justice would be better served if another court heard the action. Similarly, the modern doctrine of forum non conveniens is a common law principle that gives courts the discretion to decline exercising jurisdiction over certain cases where the underlying principles of justice and convenience favor dismissal. In 1947, the United States Supreme Court announced the factors to be considered in applying the doctrine of forum non conveniens in
Gulf Oil Corp. v. Gilbert,
The
Piper
decision responded to the world’s legal and economic developments.
See id.
at 244-49,
The courts, however, do not conduct their analysis in a vacuum. They conduct their balancing in light of the degree of deference the plaintiffs choice of forum deserves. The court’s deference for the plaintiff plays a significant role in defining the weight of the defendant’s burden in satisfying the second prong. See id.
Generally, courts view the plaintiffs choice of forum with great deference.
See id.
at 255,
Conversely, in accordance with the doctrine of forum non conveniens and its objective to “ensure that the trial is convenient, a foreign plaintiffs choice [of forum] deserves less deference [than that of an American plaintiff].”
Piper,
As the doctrine stands now, the threshold requirement in any forum non conve-niens dismissal is still the availability of an adequate alternative forum.
See id.
at 254 n. 22,
II. Application of the Docti’ine to the Case at Bar
A. DEGREE OF DEFERENCE TO PLAINTIFFS’ CHOICE OF FORUM
Prior to examining the forum non conveniens factors expressly set forth in
Piper
and
Gilbert,
this Court should approximate the degree of deference due to Plaintiffs’ choice of forum. “Where ... the plaintiff is foreign, the amount of deference is potentially less because a court cannot assume that the forum was chosen based on convenience factors.”
Onischenko,
In the case at bar, there appears to be no dispute that Plaintiffs, Dutch attorneys appointed by a Dutch court to act as bankruptcy trustees for a Netherlands-based entity, are indeed foreign plaintiffs that have neither personal nor business contacts with United States or the State of New Jersey.
14
Such lack of contacts, while indeed an important factor, does not, however, mean that this Court cannot accord significant weight to Plaintiffs’ forum selection, since a foreign plaintiff without a connection to the forum, while not entitled to the same deference as a domestic plaintiff who chooses his home jurisdiction, does not automatically receive the lowest level of deference.
See Onischenko,
Here, however, there appears to be little evidence of any convenience to Plaintiffs. Plaintiffs are legal appointees who seem to have no intention of moving their personal or business interests into the United States (or to the state of New Jersey in particular), and their operation as KPNQwest’s bankruptcy trustees has no connection with the United States but for the litigation at bar.
15
See
Compl. ¶ 1;
compare Onischenko,
In addition, there is no doubt that Plaintiffs can bring this action in the Netherlands, their home jurisdiction, and do so with confidence that the local court would entertain the action, and that jurisdiction over Defendants would be properly obtained, since a related action (De Verenig-ing van Effeetenbezitters Proceedings) was already pending against Defendants in the Netherlands at the time when Plaintiffs commenced the instant case. See Das Decl. ¶¶ 9-11, 14-17 (listing applicable legal bases under the Dutch law); see also Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, 658 U.N.T.S. 163. 16
In fact, the De Vereniging van Effecten-bezitters Proceedings,
17
as well as the Car-gill Financial Proceedings
18
filed against
B. AVAILABILITY OF AN ADEQUATE ALTERNATIVE FORUM
In order to establish whether the Netherlands present an adequate alternative forum, Defendants should show that: (1) Defendants are amenable to process in the Netherlands, and (2) the subject matter of Plaintiffs’ lawsuit is cognizable in the Netherlands and provides Plaintiffs with a redress. Defendants made both of these showings.
There appears to be no dispute that Defendants could, and were, served with process by entities having similar legal status as Plaintiffs in both De Vereniging van Effectenbezitters Proceedings and Cargill Financial Proceedings, see Das Decl. ¶¶ 9-10; Letter of Thomas R. Curtin of September 13, 2006, Ex. Cargil Financial Proceedings; and Plaintiffs’ Opposition is silent as to Plaintiffs’ inability to serve or any hardship with respect to serving Defendants with process if Plaintiffs were to initiate a Dutch action.
Moreover, Defendants aver, by and through the Declaration of Mr. Das, that
[i]f [Plaintiffs-jTrustees were to sue [Defendants] in the Netherlands under [theories fostered by Plaintiffs in the instant action, and] Defendants are domiciled in the United States, all Defendants would be subject to the jurisdiction of the Courts of the Netherlands. [In addition,] Qwest, as an alleged de facto policymaker in KPNQwest, a Dutch company, would be subject to the jurisdiction of a Dutch court on the basis of ... Section 2:138 [of Dutch Civil Code] in conjunction with Section 2:131 [of Dutch Civil Code] or Section 6 [of Dutch Code of Civil Procedure].
Das Decl. ¶¶ 13-14;
accord TH Agric. & Nutrition, L.L.C. v. Ace European Group, Ltd.,
With respect to the second prong of the adequacy of the alternative forum test, Defendants similarly aver, by and through Declaration of Mr. Das, that
Dutch law recognizes causes of action for fraud and mismanagement. A claim by a trustee in bankruptcy against the managing and supervisory directors would generally be based on Sections 2:9and 2:149 Dutch Civil Code (“DCC”) (internal liability of the managing directors and supervisory directors vis[-]a[-]vis the company) or on Sections 2:138 and 2:149 DCC (external liability of the managing directors and supervisory directors vis[-]a[-]vis the estate of the bankrupt company)----Dutch law [also] recognizes a cause of action for contribution (vrijwaringsvordering) against third parties on the basis of Section 210 Dutch Code of Civil Procedure .... [The] claims of corporate mismanagement [are filed with] the Enterprise Chamber of the Amsterdam Court of Appeals (“EC”) .... The EC is a specialized court with jurisdiction to investigate claims of corporate mismanagement of Dutch corporations. [While] damages cannot be claimed before the EC, [damages] can be claimed in subsequent legal proceedings before a Dutch district court.
Id. ¶¶ 6-7, 9.
In view of this evidence, this Court concludes that the Netherlands presents an adequate alternative forum for Plaintiffs’ action.
19
See
Tom McNamara,
International Forum Selection and Forum Non Conveniens,
34 Int’l Law. 558, 560-61 (2000) (listing the Netherlands as the forum consistently found adequate for the purposes of forum non conveniens dismissals);
accord Empresa Lineas Maritimas Argentinas, S.A. v. Schichau-Unterweser, A.G.,
C. BALANCE OF PUBLIC INTERESTS INQUIRY
The public interests to be considered include: (1) having local disputes settled locally; (2) avoiding problems of applying foreign law; and (3) avoiding burdening jurors with cases that have no impact on their community. Plaintiffs argue that
[significant U.S. interests are at stake in this dispute____Much of the fraudulent conduct and mismanagement alleged herein occurred in the United States.... Moreover, numerous persons or entities with substantial interests in the estate, including creditors and bondholders, reside in the United States. The United States has a substantial interest in redressing fraud committed from within its borders. In addition, this Court would be more familiar with the relevant law — RICO—which is a unique U.S. statutory provision. Although [Plaintiffs] assert a Dutch law claim, “more than half of the complaint involves RICO claims that are governed by federal law .... ”
Am. Compl. at 9-10; Opposition at 27-28.
It appears that Plaintiffs misread the applicable tests. The interest of having local disputes settled locally: (1) should be read jointly with that of avoiding burdening jurors with eases that have no impact on them community, and (2) focuses on the nature of the dispute and the effect that the outcome might have on the community of the local jurors. The gist of the case at bar concerns the allegations of fraud and mismanagement of a Dutch business entity by a board member and executives of that corporation, and by that corporation’s controlling holder. The fact that two of these defendants are domiciled in the state of New Jersey does not transform the case into a “local dispute,” nor can the facts that four Board meetings took place somewhere in the United States and Defendants, while being present in the United States, took part in five international conference calls, transform the case into an “American” dispute. If this Court were to find otherwise, any business transaction involving a meeting in the United States, a telecommunication from the United States or an American executive would automatically be “Americanized” for the purposes of litigation if the transaction eventually goes sour, making the United States federal court system the surrogate court for the entire modern world global economy.
• The interest of having disputes settled locally and avoiding burdening jurors with cases that have no impact on their community focuses on the effect that the resolution of the case would have on the
local
community, its citizenry, its domestic financial markets, and so on. Therefore, the United States and the community of the District of New Jersey have little interest in the resolution of this case.
20
Compare Dole Food Co. v. Watts,
Finally, Plaintiffs assert that, since some of Plaintiffs’ claims are based on RICO, the familiarity of this Court with this “unique ... statutory provision” renders this Court a more competent forum than the Enterprise Chamber of the Amsterdam Court of Appeals, or a like Dutch court, even though Plaintiffs “assert a Dutch law claim.”
22
Opposition at 28. This Court disagrees. Federal courts have not afforded claims under federal securities law or RICO any special forum non conveniens treatment, and this Court has no reason to refuse to following suit.
See Gemini Capital Group v. Yap Fishing Corp.,
Since: (1) this Court has no reason to believe that it is better equipped to deal with eleven Dutch statutory provisions than the Dutch court is to deal with one American statute; (2) the local New Jersey community has virtually no interest in the dispute, while the Netherlands’ interest in the matter is very substantial; and (3) local jurors, would be improperly burdened by the need to resolve a matter having no impact on their community, this Court concludes that the balance of public interests factors heavily favors dismissal of Plaintiffs’ Complaint.
D. BALANCE OF PRIVATE INTERESTS INQUIRY
The balance of private interests similarly favors dismissal. The relevant factors to be examined include: (1) ease of access to evidence; (2) the cost for willing witnesses to attend trial; (3) the availability of compulsory process; and (4) other factors that might shorten trial or make it less expensive.
For reasons not entirely clear to this Court, Plaintiffs infuse into the first prong of the inquiry, that is, the ease of access to evidence, the question of whether substantial discovery has already been conducted. See Opposition at 23. These matters, however, are not the same, and the ease of access to documentary evidence means exactly that: the ease of access. Defendants aver that “[m]ost of the evidence ... relating to causation, injury, and damages ... is in the Netherlands [not] in New Jersey.” 23 Mot., Mem. at 16. While conceding that “there may well be some documents ... in Qwest’s files in Colorado,” Defendants maintain that “there are many more documents ... held by both Plaintiffs and third-parties ... in the Netherlands” and other locations in Europe. Id. at 17-18 (citing Declaration of Jonathan Sherman, Docket Entry No. 66, Exs. 3-11, listing such documentary evidence as “some two thousand boxes of paper documents and two terabytes of electronic data (equivalent to roughly 150 million pages), in a Rotterdam warehouse, documents of KPNQwest’s Dutch parent company, Kon-inklijke KPN N.V., and documents of KPNQwest’s auditors and financial lenders, the Netherlands-based financial institutions, as well as affiliates of Pricewater-house-Cooper and Arthur Andersen”).
Plaintiffs: (1) counter Defendants’ argument by noting that, while “KPNQwest[’s documents] are already (or soon will be) in Qwest’s hands [and] many of those documents are available electronically!,] ... Defendants’ documents ... are in the U.S.,” in Colorado; and (2) assert that Defendants’ “objective is to limit discovery” by transferring the “litigation [to] the Netherlands, where discovery is limited.” Opposition at 23,
cf.
Reply at 10 (“The parties agree that there are
no
relevant documents in New Jersey,” emphasis in original). Plaintiffs, however, compare apples and oranges, since the concept of
In fact, the scope of discovery available in the Netherlands is not part of the balance of private interests inquiry, it is part of the inquiry examining the adequacy of the alternative forum. Differences in civil procedure of the competing forums are viewed through the prism of whether there is a “danger that [as a result of the alternative proceedings, Plaintiffs would] be deprived of any remedy or treated unfairly.”
Piper,
Finally, if this Court were to entertain Plaintiffs’ assertion that the discovery already conducted weighs against dismissal of Plaintiffs’ Complaint, the record of this litigation does not support Plaintiffs’ assertion. The record indicates that Defendants vehemently “opposed discovery pending a final ruling on Defendants’ motion to compel arbitration^ and only when the] order to engage in discovery [was issued by this Court in response to Plaintiffs’ motion to compel discovery, Defendants] complied.”
25
Reply at 10;
accord
The next step in the balance of private interests inquiry is to examine two interrelated questions: (1) what would be the cost for willing witnesses to attend trial, and (2) is there a compulsory process in the Netherlands with respect to unwilling witnesses? The answer to the first question weighs heavily in favor of dismissal in view of the ongoing De Vereniging van Effec-tenbezitters and Cargill Financial Proceedings, since the bulk of the witnesses desired by Plaintiffs (including those witnesses whom Plaintiffs designate as “central” and “relevant,” see Opposition at 23-24), as well as the bulk of third-parties desired by Defendants are either already engaged in these actions or should, and therefore, probably would be engaged in view of the similarity of the claims. Therefore, the commute and lodging expenses associated with the need to call willing witnesses would be equal or less if only the United States-based witnesses are flown to the Netherlands for various Dutch proceedings in comparison with the scenario where: (a) the United States-based witnesses are flown to the Netherlands for the currently pending Dutch proceedings, plus (b) the Netherlands-based witnesses are flown to the United States for this Court’s proceeding.
The answer to the second question similarly appears to favor dismissal. Addressing this very issue, Defendants aver, by and through Mr. Das’ Declaration, that
Dutch courts are able and willing to compel testimony of persons located in the United States on the basis of the Hague Convention on [the] Taking of Evidence Abroad in Civil or Commercial Matters ([opened for signatures on] 18[th of] March, 1970) 27 to which both the Netherlands and the United States are parties. On the basis of this convention, a Dutch court can execute letters of request (rogatory letters) in which they can request the competent authorities in the United States to perform judicial acts in order to collect evidence.
Das Decl. ¶ 7. Therefore, it appears that Plaintiffs would have no more problem in compelling unwilling United States and
Finally, the Court shall assess the litigation at bar to determine whether there are any other matters that might affect the balance of private interests by shortening the trial or making it less expensive. This Court is persuaded by Defendants’ argument that, since Defendants can and intend to “assert contribution claims against third-parties in the Netherlands and elsewhere in Europe[, this Court should] discourage ... piecemeal litigation [by] favor[ing the] dismissal.” Reply at 12-13. Plaintiffs’ counter-arguments that: (1) Defendants are yet to sue these third parties, and (2) Defendants could initiate separate suits in the Netherlands against these parties, see Opposition at 23-24, are not persuasive. The fact that the parties intended by Defendants for impleader are already made part to the De Vereniging van Effeetenbezitters and Cargill Financial Proceedings suggests the likelihood of Defendants’ legal actions against these parties. Moreover, if this Court is to presume that Defendants are to follow Plaintiffs’ advice by initiating additional related legal actions, the possibility of a mushrooming cluster of suits in the Netherlands only supports dismissal of Plaintiffs’ Complaint, so the court in the Netherlands could execute a joinder of actions, thus shortening the trial processes and making them less expensive. In sum, this Court is convinced that the balance of private interests in terms of ease of access to evidence, cost of litigation, compulsory processes and other factors unambiguously favor dismissal of Plaintiffs’ Complaint.
E. OPPRESSIVENESS AND VEXATION TO DEFENDANTS
Finally, Plaintiffs maintain that Defendants “cannot show that proceedings in this Court would be ‘oppressive or vexatious,’ ” Opposition at 18, since Defendants have “not shown a practical inability to proceed here.” Id. at 20.
Plaintiffs err. First, an application for dismissal on the grounds of forum non conveniens does not require defendant’s showing of “inability” to litigate in the inconvenient forum: the “inability” factor was never listed by Piper and Gilbert Courts.
Moreover, under the holding of
Piper,
the defendant has to make an “oppressive or vexatious” showing
only in case if the plaintiff is suing in plaintiff’s home forum. See Piper Aircraft Co. v. Reyno,
Plaintiffs’ “oppressive or vexatious” argument is based on the language of the Third Circuit’s case,
Lony v. E.I. Du Pont de Nemours & Co.,
[since] most forum non conveniens cases involve a defendant, sued far from home, arguing against being forced to litigate in a remote forum[, it seems illogical for the defendant to] argu[e] that it would be more convenient for him to defend himself thousands of miles away.
174 FedAppx. at 122 (citing
Lony,
Capitalizing on United States domicile of Defendants, Plaintiffs rely on the language of
Lony
to assert that, since “[D]e-fendant[s’] ... wish[ ] to defend [themselves] in a forum far from [Defendants’] home jurisdiction^ Defendants’ wish] is, as Alice said, ‘euriouser and curiouser.’” Opposition at 20 (internal quotation omitted). What Plaintiffs fail to observe is that defendants in both
Lony
and
Onis-chenko
were
not
already involved in other, similarly focused, litigations in foreign jurisdictions. Consequently, the Third Circuit questioned the defendants’ interest in litigating the claims thousands miles away. Conversely, in the case at bar, Defendants are already involved in two litigations in Amsterdam, and in the very same court that would entertain Plaintiffs’ Dutch action if Plaintiffs chose to sue Defendants in the Netherlands. Given these circumstances, it is not surprising that Defendants see Plaintiffs’ litigation in New Jersey as “oppressive or vexatious,” since Defendants would be forced to stretch their resources over both sides of the ocean by: (1) hiring different counsel to meet two different sets of bar admission requirements and two different sets of procedural rules; (2) losing the opportunity to seek joinder of actions; (3) flying witnesses and themselves across the Atlantic both ways on regular basis, thus incurring substantial travel and accommodation expenses; and (4) having to translate all relevant documents and testimony,
29
etc. Viewed through the prism of conveniences available to Plaintiffs in Plaintiffs’ home forum and potential dire exhaustion of Defendants’ resources through a cluster of transatlantic litiga-tions, Plaintiffs’ action appears to be “oppressive or vexatious,” and the balance of the private and public interest factors “clearly points towards trial in the alternative forum,” thus, supporting dismissal.
See Piper,
III. Other Plaintiffs ’ Arguments
In addition to the matters discussed infra, Plaintiffs raise two groups of arguments in support of Plaintiffs’ opposition to Defendants’ Motion.
A. UNTIMELINESS
One group of Plaintiffs’ arguments prompts this Court to deny Defendants’ motion as untimely and relies on
In re Air Crash Disaster Near New Orleans,
821
This Court finds no undue dilatory tactics on part of defendants. Upon initiation of the case at bar, Defendants immediately moved to compel arbitration in London and stay this action, see Docket Entries No. 30-31, which Plaintiffs opposed, see Docket Entry No. 32, and denial of Defendants’ motion to compel arbitration was entered by this Court on June 17, 2005, see Docket Entry No. 46, causing Defendants to appeal that order on July 22, 2005, see Docket Entry No. 51, with Plaintiffs’ opposition to the appeal being filed on August 22, 2005. See Docket Entry No. 54. The final resolution of the issue whether arbitration in London should be compelled was reached only on September 25, 2006. See Docket Entry No. 84. However, Defendants’ motion to dismiss Plaintiffs’ Complaint on the grounds of forum non conve-niens was filed on February 21, 2006, see Docket entry No. 66, that is, seven months prior to the final resolution of the arbitration issue.
It is axiomatic that, since, “as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration,”
Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp.,
Plaintiffs, however, seem to assert that, “if one intends to seek either arbitration, or dismissal on [the grounds of] forum non conveniens, those motions [should be] filed together,” Opposition at 17, and cite four cases in support of that proposition.
31
See id.
n. 9. However,
none
of the cases cited by Plaintiffs implies such a rule. In fact, in all those cases it was coincidental that the motions to compel arbitration and to dismiss on the grounds of forum non con-veniens were filed together, and a prudent litigant may very well wait with a forum non conveniens motion until the resolution of the arbitration issue.
32
See Garney Cos. v. Southwest Water Wells, Inc.,
Therefore, this Court finds Plaintiffs’ argument of untimeliness without merit and concludes that Defendants’ instant Motion is timely.
B. CHAPTER 15 and COMITY-BASED CLAIMS
Another group of Plaintiffs’ arguments asserts that Defendants’ Motion should be denied in view of: (1) “Chapter 15,” that is, 11 U.S.C. § 1501, et seq. and, specifically, § 1509, which “facilitates the efforts of foreign bankruptcy trustees to pursue claims in U.S. Courts” and “encourage[s] comity between U.S. and foreign court”; (2) 28 U.S.C. § 1782; and (3) “[t]he significant fact that a Dutch court overseeing the bankruptcy [proceedings of KPNQwest] expressly authorized [Plaintiffs] to bring their claims in the U.S.,” and this “Dutch bankruptcy court’s decision is entitled to comity and deference.” Opposition at 21-22, 28 (internal quotations omitted, emphasis in original).
Plaintiffs’ reasons for so claiming are not immediately obvious to this Court. Fashioned after UNCITRAL’s Model Law on Cross-Border Insolvency, Chapter 15 generally applies whenever there is a foreign insolvency proceeding relating to a debtor that is subject to a bankruptcy case of some kind in the United States; the reach of the provision is limited to the matters related to insolvency proceedings, see 11 U.S.C. § 1501(a) (“The purpose of this chapter is to ... provide effective mechanisms for dealing with cases of cross-border insolvency with the objectives of ... fair and efficient administration of cross-border insolvencies”), and have no relevance whatsoever to actions brought under securities, agency or tort law.
Moreover, the “comity” implications of Chapter 15 have no relevance to the case at bar. Because of the enactment of Chapter 15, “[o]nee a foreign bankruptcy proceeding is recognized, a wide range of relief available under American bankruptcy law immediately becomes applicable, including the automatic stay provision in [S]ection 362 of the [Bankruptcy] Code.”
United States v. J.A. Jones Constr. Group, LLC,
Plaintiffs’ decision to rely on 28 U.S.C. § 1782 and on the related statutory interpretation provided in
Intel Corp. v. Advanced Micro Devices, Inc.,
Finally, Plaintiffs’ assertion that this Court should, out of “comity,” deny Defendants’ Motion because “a Dutch court overseeing the bankruptcy [proceedings of KPNQwest] expressly authorized [Plaintiffs] to bring their claims in the U.S.,” Opposition at 28, is similarly bewildering.
Like the concept of public policy in the conflict of laws, the label “comity” can serve as a substitute for analysis.
See
Paulsen and Sovern,
“Public Policy” in the Conflict of Laws,
56 Colum. L.Rev. 969, 1016 (1956). The comity principle was originally developed to explain how a sovereign state, absolutely powerful within its own territory, could give recognition or effect to another nation’s
laws
without diminishing or denying its own sovereignty.
34
A legal doctrine, international comity is not a rule of public international law, but the term characterizes many of those same functional elements that define a system of international legal order, it is a judicial tradition based on respect for sovereignty, a discretionary power of the court to
decline
jurisdiction in international cases out of respect for the actions and laws of another nation, which are weighed against U.S. international convenience and duties, and against consideration for the rights of nationals and others under protection of its law.
35
See Bodner v. Banque Paribas,
114
This emphasis on the voluntary nature of the doctrine has led to its. use to describe an amorphous “never-never” land whose borders are marked by fuzzy lines of politics, courtesy, and good faith.
See Somportex Ltd. v. Philadelphia Chewing Gum Corp.,
Consequently, this Court finds Plaintiffs’ arguments based on Chapter 15 and the concept of comity without merit and irrelevant to this Court’s balance of private and public interest factors.
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss Plaintiffs’ Complaint on the grounds of forum non conveniens will be granted with respect to Defendants Qwest Communications International, Inc., John A. McMaster, Robert S. Woodruff and Joseph P. Naccio. Plaintiffs’ claims against Defendants 1-10 will be dismissed for lack of prosecution. Defendants’ Motion to Compel Plaintiffs to Post a Security Bond, Docket Entry No. 77, will be denied as moot. Defendants’ Motion to Compel and to Extend Deadline for Completion of Document Discovery, Docket Entry No. 73, will be denied as moot, and the order that there shall be oral argument as to whether to compel and to extend deadline for completion of document discovery, Docket Entry No. 87, will be vacated as moot.
Notes
. An amended complaint was filed on September 21, 2006, upon substitution of J.C. van Apeldoorn by Marcel Windt.
See
Docket Entry No. 81. As in the original Complaint, the Amended Complaint seeks: (1) damages equal to the liquidation deficit of the bankruptcy estate, (2) treble damages, pursuant to
. The total number of these entities appears to be around 130. See Compl. ¶ 20. KPNQwest offered its services in 15 European countries. See id. ¶ 21.
. Plaintiffs also named defendants 1-10 who, three years after initiation of this action, (a) remained unidentified by Plaintiffs, and (b) were not served by Plaintiffs. It appears from Plaintiffs' Opposition that Plaintiffs could eventually decide to name "all relevant current and former Qwest employees responsible for fraud” as such defendants, see Opposition at 23-24; however the record reveals that Plaintiffs neither named these parties as defendants nor served them. In view of this Court’s decision to grant Defendants' Motion, this Court dismisses Plaintiffs’ claims against Defendants 1-10 for lack of prosecution.
. On September 21, 2006 Plaintiffs filed their Amended Complaint (hereinafter “Amended Complaint”), which elaborated on the very same alleged wrongdoings.
. This Court expresses no opinion as to whether Plaintiffs' RICO claim is viable or not.
See Alnwick
v.
European Micro Holdings, Inc.,
. Defendants’ submission is accompanied by Declaration of Mr. Maarten Das, "an attorney with the law firm of Loyens and Loeff N.V., [located in] Amsterdam, Netherlands.” Das Decl. ¶ 1. Mr. Das holds a legal degree from the Vrije Universiteit of Amsterdam and is the head of the Litigation Department of the Corporate Practice Group at his firm. Id. ¶¶ 3-4.
With respect to the Dutch proceedings initiated by the Dutch shareholders (hereinafter “De Vereniging van Effectenbezitters Proceedings” titled after the lead plaintiff in that matter), the Declaration provides an exhaustive list of parties already involved or expected to be involved in that action, see Das Decl. ¶¶ 10, 12 (naming the total of 47 parties, all of which, except for the Defendants in this action, are located either in the Netherlands or in the United Kingdom), and explains that the Dutch court also ordered Plaintiffs to appear in that action. Id. ¶ 11.
Moreover, on September 13, 2006, KPNQwest’s lenders and their assignees initiated another action in the Netherlands against three of the Defendants in this action (a) raising virtually the same claims as those presently asserted by Plaintiffs and, in addition, (b) naming other defendants, six of whom are residing in Netherlands, one in the United Kingdom, and six in the United States (specifically, in the states of Colorado, New York, Missouri, Georgia, New Jersey and Virginia). See Letter from Thomas C. Curtin of Sep. 13, 2006, Ex. Cargill Financial Markets, PLC. And Citibank, N.A., v. KPN Telecom B.V., et al. (hereinafter "Cargill Financial Proceedings”).
. The availability of an adequate alternate forum was a threshold requirement; consequently, if it was not met, dismissal could not be proper.
See Piper,
. In
Gulf Oil Corp.
v.
Gilbert,
. American courts are appealing to foreign plaintiffs. With so many American states to choose from, the number of inviting jurisdictions is abundant, and since each applies its own choice-of-law rules, the forum shopping plaintiff can find just the right fit. Another appealing aspect of American courts is the availability of jury trials, in comparison to civil law jurisdictions.
See Piper,
. The Second Circuit, in
Iragorri v. United Technologies Corp.,
. True, differences in the laws may affect the likelihood of recovery. Therefore, plaintiffs frequently argue that the less favorable laws that apply in an alternate forum render that alternate forum "inadequate.” Such disparities between the laws of the chosen and alternative forums, however, do not render the alternate forum inadequate.
See Piper
at 250,
. While the Supreme Court in
Piper
did not address the issue of international treaty-based treatment of foreign national plaintiffs in U.S. courts, the Second Circuit in
Iragom
stated that the court’s "analysis [should be] mindful of those considerations.”
Iragorri,
. This Court is aware of no bilateral or multilateral Treaty of Peace, Friendship, Navigation and Commerce (hereinafter "FNC treaty”) granting the Netherlands nationals “national treatment” for the purposes of access to this nation's courts, and Plaintiffs similarly do not assert that, under any FNC treaty, Plaintiffs qualify for "national access.”
. Indeed, Plaintiffs’ interest in the matter are limited solely by the appointment they obtained from the Dutch court. When the original plaintiff J.C. van Apeldoorn resigned from his position as KPNQwest’s bankruptcy trustee, he was substituted by his successor trustee, Marcel Windt. See Docket Entry No. 79. It appears that Mr. Van Apeldoorn’s interest in any litigation in the United States immediately extinguished upon his resignation, and that Mr. Windt’s interests in such litigation arose only upon Mr. Windt’s appointment and are likely to continue just as long as Mr. Windt’s appointment lasts.
. The treaty opened for signature November 15, 1965. Both the United States and the Netherlands are among the twenty-seven ratifying signatories of the treaty which is deposited for custodial holding at the Ministry of Foreign Affairs of the Netherlands.
. Plaintiffs appear to assert that the nature of claims in these Proceedings is unrelated to the case at bar, since one of the litigations (presumably De Vereniging van Effectenbezit-ters Proceedings) is an insurance coverage case. See Opposition at 29. However, Plaintiffs’ points are of little relevance to the issue at hand, since Defendants do not assert that the instant case should be dismissed as duplicating an ongoing case in the Netherlands.
.Plaintiffs' submissions do not clarify the caption and index of the insurance coverage case,
see
note 17,
supra.
To make matters more confusing, Plaintiffs also assert that a certain other litigation is a petition for “investigatory proceeding," not a law suit.
See
Opposition at 29. It is not entirely clear to this Court whether this "investigatory proceeding” is the one that has become the Cargill Financial Proceedings on September 13, 2006. In any event, the Cargill Financial Proceedings are, indeed (1) a law suit, and (2) set forth claims
virtually identical
to those raised by Plaintiffs. Finally, the Court notes in passing that Plaintiffs’ assertion that an "investigatory proceeding" in the Netherlands cannot be a law suit is erroneous in the sense that an investigatory process is an indelible part of civil law legal proceedings since, in civil law jurisdictions, the legal system is in-quisitory (rather than adversarial, as it is in common law jurisdictions) and, hence, has to involve an "investigatory process.”
See, e.g.,
Russell G. Pearce,
Redressing Inequality in the Market for Justice: Why Access to Lawyers Will Never Solve the Problem and Why Rethinking the Role of Judges Will Help,
73 Ford-ham L.Rev. 969, 971 (2004) (contrasting the inquisitorial system where judges are experts who "conduct investigations, initiate cases, determine the issues, and control the presen
. Moreover, it appears that, under the Dutch law, non-Dutch parties would be able to join Plaintiffs in their Dutch action against Defendants. See R.D. Kollewijn, American-Dutch Private International Law 30 (2d ed.1961); Van Rene van Rooij & Maurice V. Polak, Private International Law in the Netherlands 50, 53 (1987); J.P. Verheul, Private International Law, in Introduction to Dutch Law for Foreign Lawyers 263, 280 n. 88 (D.C. Fokke-ma et al. eds., 1978).
Finally, there is little doubt that Plaintiffs would be able to enforce the award, if such is rendered in their favor by the Dutch court, in the United States. The United States professes liberal policies with respect to foreign judgments in most situations. See generally Uniform Foreign Money Judgments Recognition Act, 13 U.L.A. 263 (1986) (setting forth liberal policies for accepting foreign judgments). The Uniform Foreign Money Judgments Recognition Act is currently accepted in thirty states, the District of Columbia and the Virgin Islands. See Uniform Law Commissioners, A New Facts About the Uniform Foreign Money Judgments Recognition Act (listing current status of acceptance of the Act), available at <<http://www.nccusl.org/nccusl/uniform actfactsheets/uniformacts-fsufmjra.asp > >; Restatement (Third) of Foreign Relations 481-486 (1987) (generally paralleling relevant provisions within the Uniform Foreign Money Judgments Recognition Act); Restatement (Second) of Conflict of Laws 98 (1971) ("A valid judgment rendered in a foreign nation after a fair trial in a contested proceeding will be recognized in the United States”).
. Plaintiffs assert that, "[wjhile KPNQwest kept its books in accordance with Dutch generally accepted principles (‘Dutch GAAP’), which required the record to be ‘true and fair’ reflection of the company’s financial condition, KPNQWest published its reports in accordance with United States generally accepted accounting principles (‘US GAAP') and purported to make its financial disclosure in accordance with the laws of the United States." Compl. at 11. Leaving aside the ambiguity of Plaintiffs’ allegation that KPNQwest “purported to make its financial disclosure in accordance with the laws of the United States” without clarification as to whether KPNQwest succeeded in these efforts, this Court finds Plaintiffs' argument irrelevant to the inquiry at bar, since U.S. GAAP, one of the most stringent set of accounting rules in the world, as well as the strict regulatory regime set forth by United States securities laws and the rigorous rules of American stock exchanges substantially exceed the accounting and disclosure requirements of their European counterparts. See, e.g., Kenji Taneda, Sarbanes-Oxley,
Foreign Issuers and United States Securities Regulation,
Colum. Bus. L.Rev. 715 (2003); Roberta S. Karme,
Will Convergence of Financial Disclosure Standards Change SEC Regulation of Foreign Issuers?, 26
Brooklyn J. Int'l L. 485 (2000); Christopher J. Mailander,
Searching for Liquidity: United States Exit Strategies For International Private Equity Investment,
Am. U. Int’l L.Rev. 71 (1997). Thus, Defendants
. Indeed, had it been otherwise, the forum non conveniens issue would have not surfaced at all. In case of an international dispute, where interested parties and witnesses are scattered all over the world, the factor of ‘'multinationality” can neither be squarely resolved in favor of any single country nor serve as a decisive element.
. It shall be noted, however, that Plaintiffs assert at least two legal theories under Dutch law: mismanagement and breach of fiduciary duty, and allege that these wrongdoings were made in violation of eleven statutory provisions of the Dutch Civil Code. See Compl. at 119-20. It is not entirely clear to this Court why Plaintiffs designate the RICO statute "unique” and requiring special expertise, while deeming the eleven statutes of Dutch Civil Code "commonplace” and requiring no legal savvy.
. Defendants rely on the cases granting dismissal on the grounds of forum non conve-niens stating that, where evidence relating to causation, injury and damages is located in alternative forums, dismissal is proper. Specifically, Defendants rely upon
Aguinda v. Texaco, Inc.,
. The actual issue at hand, that is, the ease of access to documentary evidence, would not be affected if the case is litigated in the Netherlands, since Plaintiffs would still have to produce or make available for examination all Netherlands-located documents to Defendants, and Defendants would still have to produce or make available for examination all Colorado-located documents to Plaintiffs. (Defendants aver that "Plaintiffs refused to produce 2,000 boxes of hard-copy documents in the United States, insisting that Defendants must go to the Netherlands to inspect them,” even though Defendants were and are willing to "make ... documents available in either forum.” Reply at 10-11 (citing Second Declaration of Jonathan Sherman, see Docket Entry No. 71)). The expenses and complexity associated with such production and examination appear to be the same regardless of whether the case is litigated in New Jersey or in Amsterdam. While this Court has little problem envisioning a scenario where the physical location of evidence might be of paramount importance, e.g., where the case involves a piece of real estate or non-transportable heavy or sensitive machinery, or a bedridden injured person, a "paper-trail” case like the one at bar does not appear to be amenable to substantial fluctuations of the "ease of access” factor.
. On July 17, 2006, Defendants filed their motion to compel discovery,
see
Docket Entry No. 73, asserting that Plaintiffs were not cooperating with — or unduly impeding — Defendants’ discovery requests. On August 24, 2006, Defendants filed their motion to compel Plaintiffs to post a security bond,
see
Docket Entry No. 77, in view of Defendants’ (1) right to indemnification under the Articles of KPNQwest, and (2) Defendants’ swiftly
. The order granting Plaintiffs’ motion for initiation of discovery was issued on December 23, 2005, nine months prior to this Court’s final resolution of the issue whether to compel arbitration of the dispute. See Docket Entry No. 84. Just two months after this Court ordered the parties to engage in discovery, Defendants filed the instant Motion seeking dismissal of the grounds of forum non conveniens. See Docket Entry No. 66.
. The Convention, popularly known as "Hague Evidence Convention,” 23 U.S.T. 2555, T.I.A.S. No. 7444, providing the opportunity to depose witness located overseas, was signed, inter alia, by the United States, Austria, Belgium, Canada, Denmark, Spain, Luxembourg, Norway, the Netherlands, Portugal, the United Kingdom, Finland, France, Greece, Ireland, Italy, Sweden, Switzerland, Czechoslovakia, and Yugoslavia. See also, Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, 658 U.N.T.S. 163.
. Plaintiffs’ two other arguments on this aspect of the inquiry are without merit, since: (1) Plaintiffs assert that the Motion was filed solely by Qwest, even though the remaining Defendants joined the Motion prior to filing of Plaintiffs' Opposition,
see
Docket Entries No. 68, 69, and (2) Plaintiffs claim that Defendants cannot be deemed "oppressed” because Defendants, while seeking to compel arbitration and stay the instant proceedings, utilized the services of counsel located in District of Columbia and New Jersey. This second
. If the instant action is not dismissed, all documents and testimony in Dutch would have to be translated into English for the use of this Court, while all documents and testimony in English would have to be translated into Dutch for the use of the court in the Netherlands. Hence, there would be no document or testimony left untranslated. If, however, this action is brought in the Netherlands, the translation-related time and expenses would be obviously reduced, perhaps by half, by the need to translate only the documents drafted in English.
. Plaintiffs assert that the court in Lony denied the forum non conveniens motion because "two years have elapsed since the case was filed.” See Opposition at 17. However, the Lony decision does not state exactly that. Rather, the court in Lony observed as follows:
The facts that two years have elapsed since the case was filed, there has previously been limited discovery on the forum non conveniens motion, and this was followed after remand by merits discovery for nearly six months present a novel question that does not fit easily into established criteria. This consideration goes to both private concerns, because of the parties’ investment in time and money in discovery, and public ones, because the district court and court personnel already have expended resources in connection with this litigation.
Lony,
. Specifically, Plaintiffs cite
Concat LP
v.
Unilever, PLC,
. Moreover, either the circumstances of these cases or the judicial observations made in these decisions, or both, advocate
against
Plaintiffs’ current position. For instance, in
Concat,
the court found that the arbitration agreement did apply to the subtle subject matter of the dispute and granted a motion to stay pending arbitration while noting that, had it not been for the arbitration, the action would have proceeded since the doctrine of forum non conveniens did not justify dismissal because the companies, by the act of filing U.S. patent applications, had exposed themselves to the foreseeable possibility of litigation in the United States. In
Usha,
the defendant domestic corporations contended that the United States court was an inconvenient forum because the claims at issue all arose under the laws of India and most of the events in issue allegedly occurred there. Although the plaintiff foreign corporations asserted that India did not provide an adequate alternative forum since the backlog of cases and continuing court congestion indicated that it would take 10 to 15 years for their claims to be adjudicated, the
Usha
court dismissed the complaint finding the Indian forum adequate. In
Sandvik,
the Court noted that the domicile of key witnesses in a certain forum does not render that forum more convenient.
See
.Indeed, this Court’s finding that the dispute at hand is not subject to arbitration does not indicate that the dispute cannot be dismissed on the grounds of forum non conve-
. The use of the term "comity” to describe a theory for accommodating conflicting legal policies of territorial sovereigns was developed by scholars in 17th-century Holland to resolve conflicts between the laws of the various Dutch provinces. See Davies, The Influence of Huber’s de Conflictu Legum on English Private International Law, 18 Brit. Y.B. Int’l L. 49, 52 (1937). The Dutch scholar, Ulrich Huber, set out to reconcile the fact and theory of national territorial authority with the needs of a developing international system in which persons and commerce moved across state lines. Huber summarized his analysis in three now well-known axioms: (1) the laws of every sovereign authority have force within the boundaries of its state, and bind all subject to it, but not beyond; (2) those are held to be subject to a sovereign authority who are found within its boundaries, whether they be there permanently or temporarily; (3) those who exercise sovereign authority so act from comity, that the laws of every nation having been applied within its own boundaries should retain their effect everywhere so far as they do not prejudice the powers or rights of another state and another state’s courts. See Davies, The Influence of Huber’s de Conflictu Legum on English Private International Law, 18 Brit. Y.B. Int’l L. 26 (1937).
. In addition, the doctrine is also one of local restraint, limiting the application of sovereign power to extraterritorial events and