HAIGHT, Senior District Judge:
This action concerns a helicopter crash that occurred on July 19, 2006, in Antalya, Turkey. The helicopter was manufactured by MD Helicopters, Inc., an Arizona corporation not a defendant, with component parts that were manufactured by the two principal defendants in the action, Rolls-Royce Corporation ("RRC") and Goodrich Pump & Engine Control Systems, Inc. ("GPECS").
All defendants have moved under Fed. R.Civ.P. 12(b)(6) to dismiss the Complaint for failure to state a claim. GPECS limits its motion to one argument: the issue-preclusive effect of a state-court judgment in Indiana, where the Superior Court of Marion County (the "Indiana Court") dismissed an almost identical suit
A motion to dismiss under Rule 12(b)(6) must be decided on "facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and [ ] matters of which judicial notice may be taken." Leonard F. v. Israel Disc. Bank of N. Y., 199 F.3d 99, 107 (2d Cir.1999) (citation omitted). On a 12(b)(6) motion, all complaints must be construed liberally. See Rescuecom Corp. v. Google, Inc., 562 F.3d 123, 127 (2d Cir.2009).
On a motion to dismiss under Rule 12(b)(6), judicial notice may be taken of other judicial documents that might provide the basis for issue preclusion. Cf. Day v. Moscow, 955 F.2d 807, 811 (2d Cir.1992) (for the related doctrine of claim preclusion or res judicata, "when all relevant facts" are amenable to being judicially noticed, "the defense may be upheld on a Rule 12(b)(6) motion without requiring an answer"). Although commentators disagree about the propriety of raising issue preclusion on a motion to dismiss,
The "fundamental notion" underlying issue preclusion, also known as collateral estoppel, "is that an issue of law or fact actually litigated and decided by a
Id. (internal quotation marks and citations omitted); see also Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir.1995).
The Second Circuit has also stated that "[t]o determine the [preclusive] effect of a state court judgment," in order to satisfy the Full Faith and Credit Act, 28 U.S.C. § 1738, "federal courts, including those sitting in diversity, are required to apply the preclusion law of the rendering state." Conopco, 231 F.3d at 87; see also Kremer v. Chem. Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). The current requirements of issue preclusion in Indiana are uncertain,
It is evident that defendants have established elements (2) through (4) of the federal collateral estoppel analysis. With respect to elements (2) and (3), the parties here agree that the issue of forum non conveniens was actually litigated and actually decided by the state court in Indiana,
Furthermore, as to element (4), it is beyond question that the issue of forum non conveniens was "necessary to support" the Indiana Court's "valid and final judgment on the merits." In its entirety, the Indiana Decision stated the following:
Indiana Decision at 1-2.
It is understandable, therefore, that plaintiffs argue that defendants have not met their burden as to the only remaining element of the issue preclusion test, namely, element (1): whether the issues in both proceedings are identical. Plaintiffs argue that "the forum non conveniens law applied, the issues litigated and the objective factors considered by the Indiana state court differ from the forum non conveniens analysis which must be applied to the present case." Pls.' Opp'n to GPECS Mot. [doc. #33] at 11; see also id. at 11-22.
More fundamentally, plaintiffs argue that as a matter of law, a federal district court sitting in diversity may never apply issue preclusion on the particular issue of forum non conveniens if the issue was previously decided by a judgment entered in a state court. Id. at 4-11. I address each of these arguments in turn.
A side-by-side comparison of the complaints in the Indiana Action and the case at bar reveals that, on the face of the pleadings, these actions are virtually identical.
Plaintiffs argue that differences in the substantive Indiana and Connecticut laws governing spoliation should prevent this Court from applying collateral estoppel to bar their claims. This difference between Indiana law and Connecticut law is not visible on the face of the complaints, which are virtually identical as to this count.
Because of this alleged substantive difference in law, plaintiffs further argue that courts in Connecticut have a public policy interest in retaining claims for the intentional tort of spoliation, while the Indiana Court was not concerned with that public policy interest. To support this argument, plaintiffs cite several cases where courts have described a public policy rationale when retaining jurisdiction over product-liability claims. See id. at 20. But those cases all undertake a forum non conveniens analysis to determine whether an overseas forum is more convenient for the plaintiff's substantive claims for defective-product tort liability. None of plaintiff's cases suggests that a claim for spoliation of evidence—a derivative claim that entirely depends on other claims for its existence—would be sufficient to tip an a forum non conveniens analysis in favor of the local forum where other factors support dismissal in favor of a foreign forum.
Pointing to the transcript of the oral argument in Indiana, plaintiff further argues that the Indiana court took into account the substantive difference in the state laws of Indiana and Connecticut when it decided to dismiss its case under
Plaintiffs are correct that during the oral argument on the defendants' forum non conveniens motion in the Indiana Action, the judge made an offhand remark about plaintiffs' spoliation claim. But that remark must be taken in context. From the transcript of the argument,
Hearing Tr. at 19-20, Indiana Action, June 23, 2008, reproduced as Pls.' Opp'n ex. 3 [doc. #33-4] (emphasis added). Minutes later, the same attorney stated that the Indiana Court might need to apply "some components of Turkish law, but I believe there would also be components of possibly Connecticut law or possibly Indiana law." Id. at 21-22. The attorney for M.D. Helicopters, Inc. disagreed: "If we did not brief it, I would ask the Court to indulge us to provide it with authority that Indiana's choice of law analysis does also not include the concept of . . . dépeçage.. . where you will mix and match the laws from various states." Id. at 27.
The Court then responded:
Id. (emphasis added; ellipsis in original).
Plaintiffs argue that the remark made by the judge in the Indiana Action
First and foremost, plaintiffs' claim for spoliation inherits the forum non conveniens determination of the related product-liability claims precisely because the former is derived from the latter. In Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006), the Connecticut Supreme Court created Connecticut's cause of action for spoliation from whole cloth.
Second, the transcript reveals that the operative distinction being argued in the Indiana Court was not whether the action should be tried in Indiana or Connecticut, under each state's unique set of legal entitlements, but rather whether the action should be tried in the United States or Turkey. During the hearing, plaintiffs' counsel accurately argued that the defendants were "not seeking to move this case from Indiana to Connecticut or to Arizona; they're seeking to move it to Turkey." Hearing Tr. at 24. Plaintiffs' counsel then argued precisely why "the public factors and the private factors ... strongly favor the case remaining in the United States." Id. (emphasis added). Listing a variety of factors, plaintiffs' counsel then emphasized that the case should remain "in the United States" by repeating the phrase no less than ten times, and drawing no distinction between factors that favored Indiana, Arizona, or Connecticut respectively. Defense counsel, by the same token, emphasized all the factors that favored Turkey— not factors that favored other states in within the United States.
Plaintiffs also argue that the forum non conveniens issue facing this court is not identical to the forum non conveniens analysis in the Indiana Action because Indiana law permits more flexibility when balancing several factors in the analysis. See Pls.' Opp'n to GPECS [doc. #33] at 12-17. More particularly, plaintiffs argue that under the applicable Indiana Rule of Trial Procedure 4.4(C),
I will put aside the question of whether this Court, when sitting in diversity, should apply federal or Connecticut caselaw to a motion for forum non conveniens.
I turn now to the core of plaintiffs' argument, that the state-law forum non conveniens analysis facing the Indiana Court was not identical to the federal-law analysis facing this Court today. Plaintiffs concede that "there is a similarity in the spirit of Indiana and federal forum non conveniens rules," but they argue that the rules, "and more importantly their application, are not the same." Pls.' Opp'n to GPECS at 15. For this proposition, plaintiffs cite McCracken v. Eli Lilly & Co., 494 N.E.2d 1289 (Ind.Ct.App.1986), an appeal from an Indiana trial court's dismissal for forum non conveniens pursuant to T.R. 4.4(C), which the Indiana Court of Appeals reviewed for abuse of discretion.
Plaintiffs are correct that the text of Trial Rule 4.4(C) seems to prescribe different steps or factors than those provided by the Supreme Court in Gulf Oil Corp. v. Gilbert. But McCracken does not merely identify a `similarity in spirit' and stop there. Instead, McCracken explicitly and unmistakably relies upon and applies federal jurisprudence when reviewing the lower court's decision. The decision begins:
494 N.E.2d at 1292 (citations omitted; emphases added); see also Hafner v. Lutheran
Moreover, after announcing that it intended to "place reliance" upon federal decisions, the appellate court in McCracken marched through the paces of the federal test for forum non conveniens—and not any other alternative state test—to determine whether the lower court had properly applied the doctrine. Thus, McCracken contains a discussion of the balance of public and private interests in favor of the local and foreign forums, 494 N.E.2d at 1292-93, the deference owed to plaintiff's choice of forum, id. at 1293, and the adequacy and availability of the alternate forum, id. The court did not suggest that any of these three key considerations— availability and adequacy of an alternate forum, deference to the plaintiff's choice of forum, and the balance of private and public interests—could be omitted or ignored by Indiana courts.
Similarly, in this case, plaintiffs presented arguments to the Indiana Court on all of these factors. See Tr. at 15, 21, 23-24, 33-34 (availability and adequacy of Turkish courts); id. at 17-18, 36, 38 (deference due to plaintiff's choice of forum); id., passim (balance of public and private factors). There is no suggestion in the record that the Indiana Court failed to consider any of the factors that were argued.
Plaintiffs are correct that the brevity of the Indiana Decision makes the Indiana Court's decision somewhat difficult to parse. Plaintiffs may also be right to complain that the Indiana Court failed to make "findings of fact relative to the motions" on the record. Pls.' Opp'n to GPECS at 16. But even if the Indiana Court had misapplied Indiana law and committed reversible error, the remedy for such error was to seek articulation or to appeal the decision.
Furthermore, I conclude that to the extent they exist, any minor differences between the federal and Indiana forum non conveniens doctrines are immaterial, because the underlying issue is fundamentally identical. See Fulani v. Bentsen, 862 F.Supp. 1140, 1151 (S.D.N.Y.1994) ("[T]he fact that substantive law may be different in the two jurisdictions does not affect the application of issue preclusion." (quoting Yamaha Corp. of Am. v. United States, 961 F.2d 245, 258 (D.C.Cir.1992))); cf. Montana v. United States, 440 U.S. 147,
Plaintiffs' final argument why this Court should not apply issue preclusion based on the Indiana Judgment boils down to their professed belief that no state court's judgment is entitled to preclusive effect with respect to forum non conveniens in a federal court. Defendants respond that the Full Faith and Credit Clause of the Constitution, U.S. Const. art. IV § 1, requires this Court to impute the same preclusive effect to a state-court judgment that I would accord to a federal judgment.
Here again, defendants have the law on their side. In Conopco, Inc. v. Roll International, already discussed supra, the Second Circuit made clear that the Full Faith and Credit Clause, enforced through the Full Faith and Credit Act, 28 U.S.C. § 1738,
Plaintiffs do not appear to disagree with the premise that if they raised their claims in another Indiana Superior Court, collateral estoppel would apply to bar their claims. Rather, they place heavy reliance on Parsons v. Chesapeake & Ohio Railway Co., 375 U.S. 71, 84 S.Ct. 185, 11 L.Ed.2d 137 (1963), which held that "a prior state court dismissal on the ground of forum non conveniens can never serve to divest a federal district judge of the discretionary power vested in him by Congress to rule upon a motion to transfer under [28 U.S.C.] § 1404(a)." 375 U.S. at 74, 84 S.Ct. 185. Because § 1404(a) incorporates many of the same factors as the common law doctrine of forum non conveniens, and because it is frequently referred to as the "convenience transfer statute," see 17 James Wm. Moore, Moore's Federal Practice § 111.03[1] (2009), plaintiffs assume that the holding in Parsons v. C & O Railway must apply to common-law forum non conveniens determinations as well.
Plaintiffs' interpretation of Parsons v. C & O Railway is mistaken. It is beyond question that 28 U.S.C. § 1404(a) did not eliminate the common law doctrine of forum non conveniens; rather, it restricted its application only to "cases where the alternative forum is abroad." Am. Dredging Co. v. Miller, 510 U.S. 443, 445 n. 2, 114 S.Ct. 981, 127 L.Ed.2d 285
Plaintiffs also point to a recent decision of the Montana Supreme Court to argue that the Full Faith and Credit Clause does not apply here. [Doc. # 47] at 2. In that case, the Montana Supreme Court held that an Illinois Court's forum non conveniens dismissal was not binding upon the state courts of Montana. See Cook v. Soo Line R.R. Co., 347 Mont. 372, 198 P.3d 310 (2008).
Plaintiff's characterization of the Montana Supreme Court's holding is mistaken, precisely because the prior dismissal in Illinois adjudicated the question of which state was the most appropriate forum for plaintiff's claim. See id. at 315 (the state trial court "erred by affording full faith and credit to the portion of the Illinois Decision ordering Cook to re-file in Indiana"). In this respect, the Montana Supreme Court's holding is exactly in line with U.S. Supreme Court precedent: a state court's determination of best forum state is not necessarily binding upon the federal courts (or other states); but a state court's determination of the best forum country is entitled to full faith and credit.
Because I am bound by the Full Faith and Credit Act to give preclusive effect to the Indiana Court's forum non conveniens determination, I dismiss this case on that ground. However, in the alternative and in the interests of judicial economy, I also address the substantive forum non conveniens question raised by RRC in its Motion To Dismiss [doc. # 17], and accordingly undertake to make my own, independent determination of that issue.
As I have already mentioned, it is unclear whether I should apply Connecticut or federal caselaw when adjudicating a forum non conveniens motion while sitting in diversity, but the point is moot since the doctrines are virtually identical. See Part III.B.1.ii., note 17 and accompanying text, supra.
I recently had occasion to summarize Second Circuit precedents in determining a motion to dismiss a case for forum non conveniens:
LaSala v. Bank of Cyprus Public Co., 510 F.Supp.2d 246, 254 (S.D.N.Y.2007) (Haight, J.) (collecting Second Circuit authority; citations omitted; emphasis in original). The Supreme Court has said that its own decisions "have repeatedly emphasized the need to retain flexibility" among the "factor[s] which may show convenience," and that "[i]f central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable." Piper Aircraft Co. v. Reyno, 454 U.S. at 249-50, 102 S.Ct. 252.
With this standard in mind, I turn to the facts in this case.
As a general defense, plaintiffs argue that the purpose of a forum non conveniens dismissal is to prevent vexation, harassment, and oppression of defendants. See Pls.' Opp'n to RRC at 29. That language, found in Gulf Oil Corp. v. Gilbert, 330 U.S. at 508, 67 S.Ct. 839, may have reflected the birthplace of the doctrine, but the purpose of the doctrine today is not merely to prevent such harassment. As plaintiffs acknowledge, "Gilbert held that dismissal may be warranted where a plaintiff chooses a particular forum, not because it is convenient, but solely in order to harass the defendant or take advantage of favorable law." Piper, 454 U.S. at 249 n.
An alternative forum is adequate "if the defendants are amenable to service of process there, and if it permits litigation of the subject matter of the dispute." Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 75 (2d Cir.2003); see also Piper, 454 U.S. at 254, 102 S.Ct. 252. This does not mean that an identical cause of action, or the same degree of relief, must be available in the alternative forum. See PT United Can Co., Ltd. v. Crown Cork & Seal Co., 138 F.3d 65, 74 (2d Cir.1998); Transunion Corp. v. PepsiCo, Inc., 811 F.2d 127, 129 (2d Cir.1987).
In the course of obtaining their forum non conveniens dismissal in the Indiana Action, the defendants in this case have already stipulated that they will not contest personal jurisdiction in Turkey, and that they will waive any statute-of-limitations defense. See RRC Br. at 30 [doc. # 17-2 at 38]; In. R. Trial P. 4.4(D), note 16, supra (requiring such waivers). Plaintiffs do not contend that the defendants in this case have reneged on such a promise.
Indeed, in their brief, plaintiffs do not even argue that Turkey is an inadequate forum. Defendants, on the other hand, have submitted affidavits to demonstrate that Turkish law provides for a remedy for plaintiffs. Specifically, the Turkish Code of Obligations provides a cause of action for negligent injury, including death (Article 41), and a plaintiff may recover medical expenses, funeral expenses, and lost income as a result of a wrongful death (Article 45), as well as reparations for a relative's loss of a decedent's companionship (Article 47). See Aff. of Erdem Degerli ¶¶ 12-14, RRC Br. ex. D [doc. # 17-7] at 4-6. Furthermore, the defendants' waivers of potential defenses based on personal jurisdiction or timeliness are valid and binding in Turkey. Id. ¶¶ 17-18. Absent opposition, the Court sees no reason to doubt the expert evidence offered by defendants. I find that Turkey is an adequate alternate forum.
In cases with foreign defendants, the home forum for the plaintiff is any federal district in the United States. See Guidi v. Inter-Continental Hotels Corp., 224 F.3d 142, 146 (2d Cir.2000). Thus, in this case, "I must consider the deference that should be given plaintiffs' choice to sue in the United States (not [Connecticut] specifically) as opposed to [Turkey]." LaSala, 510 F.Supp.2d at 256.
Usually, a plaintiff's choice of forum commands considerable deference. But "[w]hen the plaintiff's choice is not its home forum, [ ] the presumption in the plaintiff's favor `applies with less force,' for the assumption that the chosen forum is appropriate is in such cases `less reasonable.'" Sinochem, 549 U.S. at 430, 127 S.Ct. 1184 (quoting Piper, 454 U.S. at 255-256, 102 S.Ct. 252). The Second Circuit has specifically cautioned district courts that in these cases, "a plausible likelihood exists that the selection was made for forum-shopping reasons," and even if this forum "was not chosen for such forum-shopping reasons, there is nonetheless little reason to assume that it is convenient for a foreign plaintiff." Iragorri v. United Techs. Corp., 274 F.3d 65, 71 (2d Cir.2001) (en banc).
Under the Iragorri framework, when determining the degree of deference owed to plaintiffs' choice of forum, this Court should consider "the plaintiff's or the lawsuit's bona fide connection to the United States and to the forum of choice,"
Here, plaintiffs cannot argue that they have any bona fide connection to the United States, and they unabashedly acknowledge that this judicial district was chosen as part of a "litigation strategy" to keep their claims in the United States. Pls.' Opp'n to RRC at 22. Thus, on the "sliding scale" of deference, Iragorri, 274 F.3d at 71, I find that the choice of the United States as the forum is entitled to very little, if any, deference.
In Gulf Oil Corp. v. Gilbert, the Supreme Court enunciated the private and public interest factors to consider when determining which forum is most convenient and will best serve the ends of justice. These include "the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive." 330 U.S. at 508, 67 S.Ct. 839. Public interest factors include administrative difficulties stemming from court congestion, the interest in having "localized controversies decided at home," and the interest in having issues of foreign law decided by a foreign tribunal. Id. at 508-09, 67 S.Ct. 839.
RRC argues, and plaintiffs do not dispute, that all of the individuals who perished in the helicopter accident were citizens of Turkey. The plaintiffs in this action are all citizens of Turkey. Witnesses to the actual accident remain in Turkey. The helicopter wreckage, including the helicopter engine itself, is in Turkey, as is a substantial amount of other physical and documentary evidence. "Where alleged misconduct is centered in the foreign forum and the majority of evidence resides there, dismissal is favored." LaSala, 510 F.Supp.2d at 258 (collecting cases).
Plaintiffs argue in response that RRC has failed to identify with specificity "a single witness or a single class of documents that possess or contain relevant information and are not present or easily accessible in the United States," and moreover, that defendants here are "in possession of the engine maintenance and airframe records in the United States." Pls.' Opp'n to RRC at 29. In contrast, plaintiffs argue that they have "set forth at least ten relevant and necessary witnesses in the United States." Id. at 33. Further disagreements over which witnesses are under RRC or GPECS's control, and which ones would be available to testify in Turkey, was the subject of continued disagreement in RRC's reply memorandum, plaintiffs' surreply, and a sur-surreply from RRC. See Docs. ## 39, 44, 45.
As for witnesses, for the purposes of this motion, it is enough to observe that some witnesses are in Turkey and some are in the United States. Both plaintiffs and defendants will assume the cost of transporting the "willing" witnesses and evidence to their preferred forum, and neither party has submitted evidence regarding the cost of that transportation. Willing witnesses, therefore, favor neither party.
As for documentary evidence, RRC and GPECS may have retained copies of some documents during their investigations into the accident, and certain maintenance and training records will be exclusively in their possession, but the cost of transmitting these documents is negligible in today's electronic era, and RRC has agreed to provide "any documents and any witnesses
Thus, the Court considers with extra care the other factors identified in Gulf Oil Corp. v. Gilbert, including "the relative ease of access to sources of proof," the "availability of compulsory process for attendance of unwilling ... witnesses," and a view of the accident scene. 330 U.S. at 508, 67 S.Ct. 839. Aside from willing witnesses and documents produced by the parties themselves, the "sources of proof" that will be required in this air-crash negligence case are clearly located in Turkey. In particular, physical evidence is located in Turkey—and although plaintiffs pledge their eagerness to pay for its transportation, and they state that Turkish authorities have "allowed" this evidence to be transported "[t]o date," Pls.' Opp'n to RRC at 34, the evidence is nevertheless clearly outside this Court's subpoena power. Similarly, the bulk of the likely unwilling witnesses, such as those "who could testify about the maintenance of the helicopter, training of the pilot, and investigation of the accident," RRC Br. at 33, are unquestionably located in Turkey. The scene of the accident can only be viewed in Turkey. And finally, the Court notes that most, if not all, of the records and reports generated in Turkey will be in Turkish, favoring a Turkish-speaking trier of fact.
In sum, balance of the private factors strongly favors the country of Turkey as the more convenient forum.
The Supreme Court's articulation of the public policy factors that weigh upon the Court's discretion are the same today as they were in 1947, when Gulf Oil Corp. v. Gilbert was decided:
330 U.S. at 508-09, 67 S.Ct. 839; see also Iragorri, 274 F.3d at 74 (quoting this passage in full).
In all these respects, the record before me speaks with stark clarity: this case belongs in Turkish courts. Plaintiffs' only arguments to the contrary are vague assertions that domestic corporations must be held liable for the defects inherent in their products, and an argument that Connecticut's "independent cause of action" for spoliation creates a public interest in Connecticut. See Pls.' Br. at 37-39. Neither of these arguments is compelling.
"[C]ourts have repeatedly exercised their discretion to hold that a defendant's manufacturing activities within the U.S. do not tilt the public interest in favor of retaining jurisdiction...." In re Air Crash Near Peixoto De Azeveda, Braz. on
As for plaintiffs' arguments about spoliation, they are as unavailing here as they were to distinguish this Court's forum non conveniens test from the one facing the Indiana Court. For reasons discussed supra, the Connecticut Supreme Court's spoliation claim requires "underlying litigation." Rizzuto, 905 A.2d at 1180. The derivative spoliation claim, which only springs to life when the primary cause of action has been sabotaged by malfeasance, cannot tip the balance of public interest factors in favor of the United States, precisely because the merits of the "underlying litigation" will need to be determined by a Turkish court.
Because this case is appropriate for dismissal under the doctrine of forum non conveniens, the Court need not reach RRC's arguments against personal jurisdiction. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 436, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) ("[W]here subject-matter or personal jurisdiction is difficult to determine, and forum non conveniens considerations weigh heavily in favor of dismissal, the court properly takes the less burdensome course."); Pls.' Opp'n to RRC [doc. # 32] at 20-21 (requesting discovery into factual issues surrounding personal jurisdiction).
I am mindful of the Second Circuit's words of caution: "just as plaintiffs sometimes choose a forum for forum-shopping reasons, defendants also may move for dismissal under the doctrine of forum non conveniens not because of genuine concern with convenience but because of similar forum-shopping reasons." Iragorri, 274 F.3d at 75. Nevertheless, the balance of factors in this case overwhelmingly favors the convenience of the Turkish forum over that of the United States. To the extent a dismissal on those grounds is not already compelled by the Indiana Judgment, I independently reach that conclusion now.
The defendants' motions to dismiss are
The Clerk is instructed to close the file.
There are also two textual changes. First, Paragraph 13 of Count V now includes the words "intentionally, purposefully, knowingly and/or negligently" in describing the activities that resulted in the destruction or spoliation of evidence, where those words were not included in paragraph 19 of the Indiana Complaint. Second, Count V now includes the following new allegation:
Compl. Count V ¶ 12, at 17. Neither change is argued to affect the identity-of-claims analysis.
Although I might have judicially noticed the briefs before the Indiana Court if they had been provided, for the purposes of this motion to dismiss, I do not rely on GPECS's characterization of those briefs. Nevertheless, it appears from the transcript that the general trend in this litigation was to look to federal cases on forum non conveniens, and plaintiffs give me no reason to doubt that impression.