Ganpat v. E. Pac. Shipping, Pte. LTD

581 F.Supp.3d 773

Kholkar Vishveshwar GANPAT, Plaintiff

v.EASTERN PACIFIC SHIPPING, PTE. LTD, Defendant

CIVIL DOCKET NO. 18-13556

United States District Court, E.D. Louisiana.

Signed January 25, 2022

Richard Massie Martin, Jr., Lamothe Law Firm, LLC, New Orleans, LA, Alejandro J. Gonzalez, Pro Hac Vice, Gonzalez P.A., Miami, FL, for Plaintiff.

John Stephen Simms, Pro Hac Vice, Simms Showers LLP, Baltimore, MD, Marios J. Monopolis, Pro Hac Vice, Simms Showers, LLP, Hunt Valley, MD, Michael H. Bagot, Jr., Wagner, Bagot & Rayer LLP, New Orleans, LA, for Defendant.

ORDER AND REASONS

SECTION: "E" (4)

SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

Before the Court is a "Motion to Dismiss on Grounds of Forum Non Conveniens" filed by Eastern Pacific Shipping, PTE. LTD ("Eastern Pacific Singapore").¹ Plaintiff filed an opposition.² Eastern Pacific Singapore filed a reply.³

BACKGROUND ⁴

Plaintiff is a resident and citizen of the Republic of India.⁵ Eastern Pacific Singapore is an international ship management company incorporated under the laws of the Republic of Singapore with its principal place of business in the Republic of Singapore.⁶

In his original complaint, Plaintiff brings claims under the Jones Act and the general maritime law, and a contractual claim for disability benefits under Article 24 of the "TCC" Collective Agreement, which is made part of the Seafarer's Employment Agreement entered into between Ventnor Navigation, Inc. and Plaintiff.⁷ Plaintiff alleges he sustained injuries as a result of tortious conduct that occurred in Savannah, Georgia.⁸ Plaintiff alleges he contracted malaria while working as a crew member aboard the M/V STARGATE, which Plaintiff alleges is owned and operated by Eastern Pacific Singapore.⁹ Specifically, Plaintiff alleges Eastern Pacific Singapore (1) failed to provision the M/V STARGATE with sufficient anti-Malaria medication while the M/V STARGATE was docked at port in Savannah, Georgia, and (2) failed to administer prophylactic anti-Malaria medication to the crew of the M/V STARGATE before the vessel arrived in Gabon, a region with a high risk of contracting Malaria.¹⁰ Plaintiff further alleges he began to suffer Malaria symptoms on the high seas as the vessel sailed from Gabon to Brazil,¹¹ was hospitalized and treated for Malaria in Rio de Janeiro, Brazil,¹² and was subsequently repatriated to India where he received further medical treatment for Malaria and complications arising therefrom.¹³

On December 12, 2018, Plaintiff filed suit in this Court, bringing claims against Eastern Pacific Singapore under the Jones Act, general maritime law, and for breach of the contractual duty to provide disability benefits in accordance with the "TCC" Collective Agreement. Eastern Pacific Singapore waived its objections to personal jurisdiction and venue in this Court.¹⁴ Over a period of approximately two and a half years, Plaintiff attempted multiple times to perfect service upon Eastern Pacific Singapore. Eastern Pacific Singapore did not accept service and, instead, filed several motions to dismiss Plaintiff's claims under Rule 12(b)(5) for insufficient service of process.¹⁵ On August 10, 2021, the Court entered an Order and Reasons holding that Plaintiff had perfected service upon Eastern Pacific Singapore at its headquarters in Singapore.¹⁶

On August 12, 2021, Plaintiff filed a motion for leave to file his first supplemental and amended complaint for damages against Eastern Pacific Singapore.¹⁷ On August 24, 2021, Eastern Pacific Singapore filed the two pending motions to dismiss.¹⁸ During a telephone status conference on September 14, 2021, the Court granted Plaintiff's motion for leave to amend his complaint,¹⁹ and, on that same date, Plaintiff filed his first supplemental and amended complaint for damages ("amended complaint").²⁰ The parties agreed during the September 14, 2021 telephone status conference that Eastern Pacific Singapore's two pending motions to dismiss apply to the allegations of Plaintiff's amended complaint.²¹

Plaintiff's amended complaint retains his Jones Act, general maritime law, and contractual disability benefits claims set forth in the original complaint, and adds an additional claim against Eastern Pacific Singapore for "an intentional general maritime law tort."²² Plaintiff's new claim arises out of a lawsuit filed in India against Plaintiff by Eastern Pacific Singapore and Eastern Pacific Shipping (India) Private Limited ("EPS India"), a subsidiary of Eastern Pacific Singapore. Plaintiff alleges the actions of Eastern Pacific Singapore in the Indian court amount to "deliberate and malicious efforts to intimidate [Plaintiff] from seeking legal redress in this Court," and that these actions constitute an intentional general maritime law tort.²³ Eastern Pacific Singapore does not argue the addition of the malicious prosecution claim materially changes the analysis on this motion to dismiss, and the Court agrees it does not.

LAW AND ANALYSIS

Before the Court addresses the merits of the motion to dismiss based on forum non conveniens, it must address a preliminary argument raised in Plaintiff's briefing. During an April 18, 2019 status conference, counsel for Eastern Pacific Singapore represented that Eastern Pacific Singapore "will not object to venue in this Court."²⁴ Plaintiff argues by consenting to venue in this Court, Eastern Pacific Singapore "abandoned any right to seek dismissal on ground[s] of forum non conveniens" and that Eastern Pacific Singapore's "motion to dismiss for forum non conveniens should be summarily denied because [Eastern Pacific Singapore] does not object to venue in New Orleans."²⁵ Plaintiff's argument is not correct. "[F]orum non conveniens is an entirely separate and distinct doctrine" from the rules and requirements of venue,²⁶ and "[t]he objection of forum non conveniens is not a defense to improper venue."²⁷ Under the doctrine of forum non conveniens, "the court may, in the exercise of its sound discretion, dismiss the case even if jurisdiction and proper venue are established."²⁸ Thus, the fact that venue is satisfied—whether by waiver or otherwise—does not ipso facto establish that a forum non conveniens dismissal is unwarranted; were it so, the doctrine of forum non conveniens would apply only in cases in which venue was improper, and would be of no practical utility as such a case could already be dismissed on grounds of improper venue. Thus, the Court rejects Plaintiff's argument that Eastern Pacific Singapore should be precluded from asserting a forum non conveniens motion merely because it withdrew its objections to venue.²⁹

The Court now turns to the merits of the motion to dismiss based on forum non conveniens. "Although the plaintiff's choice of forum should not ordinarily be disturbed, the doctrine of forum non conveniens permits a court to resist imposition upon its jurisdiction even when subject matter jurisdiction is conferred by statute or personal jurisdiction is conferred by minimum contacts or consent."³⁰ If the moving party establishes the convenience of the parties and the interests of justice indicate the case should be tried in a different forum, the district court should dismiss the case on forum non conveniens grounds.³¹

A court may decline to exercise jurisdiction pursuant to the doctrine of forum non conveniens only "in exceptional circumstances."³² The Supreme Court has instructed that "[a] defendant invoking forum non conveniens ordinarily bears a heavy burden in opposing the plaintiff's chosen forum,"³³ and that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed."³⁴ District courts possess considerable discretion in determining whether to dismiss a case on forum non conveniens grounds.³⁵

In the exercise of its discretion, a district court should use the framework set forth by the Fifth Circuit in In re Air Crash Disaster Near New Orleans, La.³⁶ This framework involves a four-step analysis in which the defendant bears the burden of persuasion on all elements.³⁷ The four steps of the analysis are: (1) determining whether an alternative forum is available; (2) determining whether the alternative forum identified in step one is adequate; (3) considering the "relevant factors of private interest, weighing in the balance the relevant deference given the particular plaintiff's initial choice of forum"; and (4) weighing the relevant public interest, if the private interests are either nearly in balance or do not favor dismissal.³⁸

The Fifth Circuit has explained that "[i]n deciding whether to dismiss a case for forum non conveniens, the district court must first determine whether an adequate alternative forum is available."³⁹ Whether an adequate alternative forum is available is a two-part inquiry: (i) a foreign forum is available "when the entire case and all parties can come within the jurisdiction of that forum";⁴⁰ and (ii) a foreign forum is adequate "when the parties will not be deprived of all remedies or treated unfairly ... even though they may not enjoy the same benefits as they might receive in an American court."⁴¹

If the district court finds an alternative forum is both adequate and available, it must then weigh various private interest factors, starting with the timeliness of the motion.⁴² The Fifth Circuit has held the defendant "must assert a motion to dismiss for forum non conveniens within a reasonable time after the facts or circumstances which serve as the basis for the motion have developed and become known or reasonably knowable to the defendant."⁴³ Although the untimely submission of a motion to dismiss for forum non conveniens will not amount to waiver, untimeliness "weigh[s] heavily against the granting of the motion because a defendant's dilatoriness promotes and allows the very incurrence of costs and inconvenience the doctrine is meant to relieve."⁴⁴

The other private interests to be considered include: (i)...