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Amir v. Pomagalski

United States District Court, N.D. Georgia, Atlanta Division

June 25, 2015

ATMANE AMIR, Plaintiff,
v.
POMAGALSKI, Defendant.

ORDER

RICHARD W. STORY, District Judge.

This case comes before the Court on Defendant's Motion to Dismiss for Forum Non Conveniens [6], Defendant's Motion to Dismiss for Lack of Personal Jurisdiction and Failure to State a Claim [7], Plaintiff's Motion for Oral Argument [15], and Plaintiff's Motion for Leave to File Surreply to Motion to Dismiss for Forum Non Conveniens [19]. After reviewing the record, the Court enters the following Order.

Background

This case arises out of a contract between Plaintiff Atmane Amir, through his unincorporated business called International Engineering, and Defendant Pomagalski ("POMA"). Under the contract, Plaintiff agreed to act as POMA's commercial agent in Algeria to establish business relationships between Algerian transportation authorities and POMA, and to facilitate the sale of POMA's equipment and services in Algeria. (Compl., Dkt. [1-1] ¶ 1.) Plaintiff resides in Atlanta, Georgia, but he does business as International Engineering, an unregistered company operating out of Switzerland. (Id. ¶ 10.) Plaintiff is an engineer and a commercial agent specializing in international business development and consulting. (Id. ¶ 9.) POMA is a French company located in Voreppe, France. (Id. ¶ 6.) POMA designs, manufactures, and sells cable transport systems, including funiculars, gondola lifts, and chair lifts. (Id. ¶ 12.)

Plaintiff served as POMA's agent in various territories pursuant to at least seven contracts beginning in 2006. (Id. ¶¶ 14, 17.) On May 6, 2009, Plaintiff, doing business as International Engineering, entered into the subject Agency Agreement with POMA to serve as POMA's agent for representation and sales in Algeria. (Id. ¶ 19.) Under the Agency Agreement, POMA agreed to pay Plaintiff a 5% commission on equipment and services sold in Algeria. (Id. ¶ 20.) The parties executed the contract in Grenoble, France, and the contract included a choice of law provision stating that the "Agreement is governed by the law of France, " in addition to a forum-selection clause stating that "[a]ny dispute arising from the interpretation or performance of the contract and not settled by amicable settlement will be settled by the courts of Grenoble[, ] France." (Agency Agreement, Dkt. [6-2] at 18.)

Over the next few years, Plaintiff traveled to Algeria thirteen times and paid for his own travel and living expenses totaling approximately $200, 000. (Compl., Dkt. [1-1] ¶ 21.) During those trips, Plaintiff met with the Algerian Ministry of Transport and two Algerian transportation companies. (Id. ¶ 22.) Plaintiff organized at least 39 meetings between POMA and these companies, and he attended most of the meetings on POMA's behalf. (Id. ¶ 23.)

Beginning in late 2011, POMA attempted to exclude Plaintiff from communications and a meeting with an Algerian contact. (Id. ¶ 25.) POMA then tried to negotiate a lower commission rate under the Agency Agreement. (Id. ¶ 26.) After Plaintiff refused to accept a lower commission, POMA promised to respect the terms of the Agency Agreement and asked Plaintiff to continue to perform his obligations under the agreement. (Id. ¶¶ 26-28.) Eventually, on February 7, 2013, POMA stopped communicating with Plaintiff about the Agency Agreement and referred him to POMA's lawyer. (Id. ¶ 29.) Plaintiff alleges that he is entitled to over 5.4 million euros based on six contracts for the sale of over 100 million euros worth of equipment, but POMA refuses to pay him. (Id. ¶¶ 30-33.)

On September 19, 2014, Plaintiff filed this action in the Superior Court of Fulton County, bringing claims for breach of contract, unjust enrichment, quantum meruit, promissory estoppel, and fraudulent misrepresentation. Defendant moves for dismissal based on forum non conveniens, lack of personal jurisdiction, and failure to state a claim for fraudulent misrepresentation. To defeat enforcement of the forum-selection clause, Plaintiff argues that the Agency Agreement was void under French law because International Engineering is not a registered entity.

Discussion

Defendant argues that the Court should dismiss this action because Grenoble, France, is a more appropriate forum in light of the forum-selection clause and other factors.[1] Under the doctrine of forum non conveniens, a court has discretion to dismiss a case over which it otherwise has jurisdiction for reasons of convenience, fairness, and judicial economy. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 429 (2007). To obtain dismissal for forum non conveniens, "[t]he moving party must demonstrate that (1) an adequate alternative forum is available, (2) the public and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice." Leon v. Millon Air, Inc., 251 F.3d 1305, 1310-11 (11th Cir. 2001).

I. Availability and Adequacy of an Alternative Forum

The Court must first examine whether an adequate alternative forum exists. "Availability and adequacy warrant separate consideration." Id. at 1311.

A forum is available "when the foreign court can assert jurisdiction over the litigation sought to be transferred." Id . "A defendant's submission to the jurisdiction of an alternative forum renders that forum available for the purposes of a forum non conveniens analysis." Bautista v. Cruise Ships Additionally, the Court DENIES Plaintiff's Motion for Oral Argument [15] because it finds the briefing adequate to resolve the motions before it. See LR 7.1E, NDGa. Catering and Svc. Int'l, 350 F.Supp.2d 987, 991 (S.D. Fla. 2004); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 ("Ordinarily, this requirement will be satisfied when the defendant is amenable to process' in the other jurisdiction."). Here, Defendant stipulates that it is amenable to service of process in Grenoble, France. (See Def.'s Br., Dkt. [6-1] at 7.) Even though Plaintiff argues that this stipulation does not render all of France an available forum (in the event the forum-selection clause naming Grenoble is invalid but the action is dismissed in favor of France anyway), Defendant does note that as a French company it "is subject to service of process in France and is liable for judgment in France." (Jakubowicz Decl., Dkt. [6-3] ¶ 13.) What is more, to mitigate Plaintiff's concerns, the Court may condition any dismissal on Defendant accepting service of process in France. Therefore, France is an available forum.

Next, in considering whether a foreign forum is adequate, the Supreme Court noted in Piper Aircraft that dismissal may be improper "if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all." 454 U.S. at 254. "[I]t is only in rare circumstances' where the remedy offered by the other forum is clearly unsatisfactory, ' that the alternative forum may be regarded as inadequate." Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283, 1290 (11th Cir. 2009) (quoting Satz v. McDonnell Douglas Corp., 244 ...


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