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Ponder v. Prophete

United States District Court, D. Kansas

July 29, 2019

BRIAN LAMAR PONDER, Plaintiff,
v.
DONALD SONY PROPHETE, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. Background

         Highly 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.

         Defendant 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.

         Plaintiff 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).

         II. Discussion

         Defendant 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.

         A. Adequate Alternative Forum

         Courts 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.

         The 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 adequate.

         B. Foreign Law

         To meet 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.

         C. Deference to ...


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