United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
Brian Lamar Ponder alleges that on February 5, 2016,
defendant Donald Sony Prophete battered, assaulted, and
falsely imprisoned him at a villa in the Dominican Republic.
Defendant denies all of plaintiff's allegations. This
matter is now before the court on defendant's Motion to
Dismiss for Forum Non Conveniens. (Doc. 82.) Defendant argues
that the Dominican Republic is an adequate alternative forum,
that Dominican Republic law applies, and that the private and
public interest factors weigh in favor of dismissal. For the
reasons set forth below, the court grants the motion.
summarized, the facts relevant to the present motion are as
follows. Plaintiff, an attorney, represented Titus Duncan.
Duncan, along with defendant and two other individuals, were
partners in an LLC that owned an investment rental villa in
Sousa, Dominican Republic. At some point before the alleged
misconduct in this case occurred, Duncan was removed from his
membership in the LLC. Duncan allegedly gave plaintiff and
his guests permission to use the villa over the February 4-8,
2016 weekend. Defendant also planned to use the rental that
weekend. Plaintiff was the first to arrive at the villa. He
alleges that when defendant arrived at the villa, he demanded
to know his name, began yelling at him, charged at him
several times, and “aggressively pushed” him.
Plaintiff then retreated to the bedroom, where defendant
followed him and again “aggressively pushed” him.
After one of the other men was able to pull defendant away,
plaintiff locked himself in the bedroom. Defendant remained
outside the door yelling verbal threats, and plaintiff
alleges that he was locked in the bedroom for more than an
hour before a friend was able to help him out of the bedroom
through a sliding glass door. As plaintiff was being escorted
towards the pool to retrieve his belongings, defendant
“charged” toward plaintiff, attempting to throw a
barstool at him. This attempt was thwarted by another man who
grabbed the stool before defendant was able to throw it.
Plaintiff filed a report with local police before returning
to the United States.
alleges that he arrived at the villa with two business
acquaintances and a police officer. After defendant arrived
at the villa, three to five men also arrived claiming they
had flown in on plaintiff's invitation. Defendant then
confronted them and insisted that both plaintiff and his
guests leave immediately. Plaintiff then disappeared claiming
he was going to collect his things and locked himself in one
of the bedrooms for several hours, leaving only after
persuaded by friends, local police, and a local attorney.
Defendant alleges that he neither touched nor threatened
plaintiff or any of his guests.
filed a complaint against defendant for battery, assault, and
false imprisonment on February 10, 2016 in the Southern
District of New York. Shortly after, the case was transferred
to the District of Kansas. Defendant filed a motion for
summary judgment, which was denied. The court then asked the
parties to file briefing on the choice of law issue,
specifically as to whether Dominican Republic substantive law
applies or if another forum's law applies. Defendant
filed the present motion as well as a Motion for Application
of Dominican Republic Law and Integrated Brief in Support
(Doc. 81). Plaintiff did not respond to defendant's
motion and failed to respond to the court's show cause
order (Doc. 85).
argues that the present case should be dismissed under the
doctrine of forum non conveniens. “The
doctrine of forum non conveniens allows a court to
dismiss a case properly before it when litigation would be
more convenient in a foreign forum.” Cooper v.
Tokyo Elec. Power Co., Inc., 860 F.3d 1193, 1210 (9th
Cir. 2017). There are two initial threshold questions in a
forum non conveniens determination: (1) whether
there is an adequate alternative forum where the defendant is
amenable to service of process, and (2) whether foreign law
applies rather than domestic law. Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 255-61 (1981); Rivendell Forest
Products, Ltd. v. Canadian Pac. Ltd., 2 F.3d 990, 994
(10th Cir. 1993). If the threshold requirements are met, the
court then weighs the private and public interest factors.
Reyno, 454 U.S. at 255-61.
Adequate Alternative Forum
in this jurisdiction divide the adequate alternative forum
requirement into two component parts: that the alternative
forum be available and that the alternative forum be
adequate. Alpine Atlantic Asset Mgmt. AG v.
Comstock, 552 F.Supp.2d 1268, 1276 (D. Kan. 2008). An
alternative forum may be available when the defendant is
amenable to service of process in the alternative forum.
Id. The Tenth Circuit has found that a defendant is
amenable to service of process when they submit to suit in
the alternate forum. Yavuz v. 61 MM, Ltd., 576 F.3d
1166, 1174 (10th Cir. 2009). Here, defendant consented to
suit in the Dominican Republic. See Def.'s
Stipulation ¶¶ 1-2 (Doc. 83-2, at 1.) The court
takes this representation to mean that defendant voluntarily
submits to suit in the alternative forum and to accept
service of process for an action instituted there.
Consequently, the court finds that the Dominican Republic is
an available alternative forum to plaintiff.
alternative forum must also be adequate. An alternative forum
will generally be adequate unless the remedy afforded by the
alternative forum is clearly unsatisfactory.
Fireman's Fund Ins. Co. v. Thyssen Mining Const. of
Canada, 703 F.3d 488, 495 (10th Cir. 2012). Furthermore,
the Supreme Court has held that a remedy is not clearly
unsatisfactory if the alternative forum permits litigation of
the subject matter of the dispute or has a generally codified
legal remedy for the claims alleged. Reyno, 454 U.S.
at n. 22. The remedy provided need not be the same as that
provided by American courts. Yavuz, 576 F.3d at
1174. Here, plaintiff brings intentional tort claims of
assault, false imprisonment, and battery. While the Dominican
Republic does not recognize the specific tort claims laid out
in plaintiff's complaint, it has codified a general claim
for liability for intentional wrongdoing under Article 1382
of the Dominican Civil Code. See D.R. Civ. Code Art.
1382. Under this Article, “any act of a person that
causes injury to another obligates the person by whose fault
it occurred to compensate it.” See id. The
court therefore finds that plaintiff would be able to
litigate his claims under a theory of general liability
arising under the Dominican Republic Civil Code, Article
1382, and thus the alternative forum is both available and
the second threshold requirement, foreign substantive law
must control rather than American law. Rivendell, 2
F.3d at 994. In its order denying summary judgment, the court
raised the choice of law issue, suggesting that Dominican law
would apply under Kansas choice of law principles. The court
ordered the parties to submit briefing on whether Dominican
law should apply. Plaintiff did not submit briefing and did
not respond to defendant's motion, and thus has not
objected to the court's finding that Dominican law should
apply in this case. Because Kansas law dictates that the
court apply the law of the place where the tort occurred -
here, the Dominican Republic, the second threshold
requirement has been satisfied.
Deference to ...