-Caveat Lector- from: http://www.narconews.com/narconewsmotion1.html Click Here: <A HREF="http://www.narconews.com/narconewsmotion1.html";>Narco News Files Motion to Dismiss Banamex Laws…</A> ----- Furthermore, there is a serious question as to whether witnesses from Mexico are subject to subpoena in New York. Therefore, relief most probably will also not be "effective" in New York. Indeed, a fair resolution of the dispute may be impossible here. Fourth, the "most efficient resolution" of the controversy will occur in Mexico, not New York, given the location of the parties, witnesses and evidence. Fifth, substantive social policies militate against a lawsuit in New York. Banamex has already pursued defamation actions in Mexico against the defendant Mario Menendez, based on statements in his newspaper with the same content as the articles made available at www.narconews.com. Those cases were dismissed in Mexico based on a finding that although Roberto Hernandez may or may not have been libelled, Banamex itself had definitely not been libelled. Now, Banamex is in New York, seeking a "friendlier" jurisdiction in which to assert its damages. As a matter of social policy, such forum-shopping should be discouraged. D. The substantive law of Mexico applies to the issues in this case of alleged multistate defamation under New York's conflict-of-laws rules because Mexico has the most significant relationship to the alleged torts and the parties. 22 Even if this court decides to exercise personal jurisdiction over the defendant Narco News, the substantive law of Mexico applies to the defamation claims under New York's choice-of-law rules. 23 22 The analysis in this section of the memorandum is restricted to the postings at the www.narconews.com website. Each discrete claim of defamation is subject to a separate conflict of law analysis, see Wells v. Liddy, 186 F.3d 505, 522-31 (1999), and the result argued here may or may not apply to the other claims in Banamex's complaint, e.g the statements made by Mr. Menendez and Mr. Giordano on the radio broadcast in New York and at Columbia University Law School. 23 Under Mexican law, the parties appear in agreement that these claims must be dismissed because the necessary predicate of a finding of criminal defamation is lacking. See memoranda of Banamex and Mario Menendez. 1. Under New York's choice-of-law rules, the local law of the state with the most significant relationship to the occurrence and the parties applies to the substantive issues to be decided. Following the majority of jurisdictions, "New York's choice of law rules require the court to apply the substantive tort law of the state 24 'with the most significant interest in the litigation.'" La Luna Enterprises, Inc. v. CBS Corp., 74 F.Supp. 2d 384, 388 (S.D.N.Y. 1999) quoting Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir. 1999); Dorsey v. Yantambwe, 715 N.Y.S.2d 566, 569 (4th Dept. 2000); Padula v. Lilarn Properties Corp., 84 N.Y.2d 519, 620 N.Y.S.2d 310, 311 (Ct.App. 1994); Nader v. General Motors Corporation, 25 N.Y.2d 560, 307 N.Y.S.2d 647, 651 (Ct.App. 1970); Babcock v. Jackson, 12 N.Y.2d 482, 240 N.Y.S.2d 743 (Ct.App. 1963). 24 The choice-of-law principles recited in New York cases and in the Restatement (Second) of Conflicts of Laws are applicable when one of the states is a foreign nation. See Restatement (Second) of Conflicts of Laws §§ 3 and 10; Hill v. Citicorp., 215 A.D.2d 117, 626 N.Y.S.2d 103 (1st Dept. 1995); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743 (Ct.App. 1963). New York's "most significant relationship" rule applies to cases where, as here, the allegation is one of multistate defamation. The Restatement (Second) of Conflicts of Laws §150(1) ("Restatement") choice-of-law rule for multistate defamation cases explicitly provides that: The rights and liabilities that arise from defamatory matter in any one edition of a book or newspaper, or any one broadcast over radio or television, exhibition of a motion picture, or similar aggregate communications 25 are determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties. . . . Restatement §150(1) (emphasis added). See Babcock, supra 240 N.Y.S.2d at 749-50 where the Court of Appeals employed the "most significant relationship" test in connection with a personal injury case with multistate contacts. See also La Luna Enterprises, Inc., supra 74 F.Supp.2d at 388; Reeves v. American Broadcasting Companies, Inc., 719 F.2d 602, 605 (2d Cir. 1983) and Bryks v. Canadian Broadcasting Corp., 928 F.Supp. 381, 383 (S.D.N.Y. 1996). 25 The phrase "aggregate communication" is used in the Restatement to mean a communication with extensive circulation. Arochem International, Inc. v. Buirkle, 767 F.Supp. 1243, 1246 (S.D.N.Y. 1991). Here, the state with the most significant relationship to the questioned statements and the parties plainly is Mexico. Banamex's principal place of business is Mexico. Its reputation is most subject to damages there, particularly with regard to alleged activities that occurred there. The Restatement recognizes that in a multistate defamation case: [w]hen a corporation, or other legal person, claims that it has been defamed by an aggregate communication, the state of most significant relationship will usually be the state where the corporation, or other legal person, had its principal place of business at the time, if the matter complained of was published in that state. Restatement at §150(3) (emphasis added). The rule in §150(3) makes sense. In general, the state where a corporation has its principal place of business will be the place where the business's reputation will most negatively be affected by a defamatory statement. The jurisdiction where the principal place of business is located "is the place where any injury is most likely to be felt, and accordingly the jurisdiction that will have the greatest interest in having its laws control the consequences of that injury." Bryks, supra, 928 F.Supp at 383. 26 26 An alternative nine factor test was set forth in Palmisano v. News Syndicate Co., 130 F.Supp. 17, 19 & n.2 (S.D.N.Y. 1955), a case involving multistate elements. The factors were: "(1) the state of the plaintiff's domicile; (2) the state of plaintiff's principal activity to which the alleged defamation relates; (3) the state where the plaintiff in fact suffered greatest harm; (4) the state of the publisher's domicile or incorporation; (5) the state where the defendant's main publishing office is located; (6) the state of principal circulation: (7) the place of emanation; (8) the state where the libel was first seen; and (9) the law of the forum." A review of these factors also points to Mexico as the state with the most significant relationship. Factors (1), (2), (3), (4), (5) and (7) point unequivocally to Mexico. Because there is no state of principal circulation, factor (6) is unhelpful. Because the dissemination was over the Web, it is not possible to state where the libel was first seen (factor (8)). Only factor (9), the law of the forum, points to New York. 2. Analyzing all the factors that might be considered in a conflict of laws ruling, it is clear that Mexico has the most significant relationship to the action, not New York. The Restatement views the principal place of business test as a presumption, not as a rigid rule. Restatement §150(3) comment f. If another state is identified that may have a more significant relationship, then the court is to consider additional factors. However, [a]lthough the preference for the plaintiff's [principal place of business] is not conclusive, the significant contacts [in a defamation case] are, almost exclusively, the parties' [principal places of business] and the locus of the tort. La Luna Enterprises, Inc., 74 F.Supp.2d at 389 (emphasis added) quoting Lee, supra, 166 F.3d at 545 (which, in turn, quotes Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 198, 491 N.Y.S.2d 90, 95 (Ct.App. 1985). In Padula, supra, 620 N.Y.S.2d at 311, the court looked to the locus of the tort ("lex loci delicti") in order to establish which jurisdiction had the most significant interest. "If conflicting conduct-regulating laws 27 are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders." Id. at 311. 27 Defamation is a conduct-regulating (as opposed to loss allocating) law. However, applying a lex loci test to establish which state has the most significant relationship to the tort is not always easy. The lex locus of a defamatory statement is not necessarily the place of the wrong. It may be (a) where the statement was heard or seen, but it also can be (b) the place of injury. Arochem, supra, 767 F.Supp. at 1247. Although the two are often the same 28 , the primary injury from a defamatory statement can occur in a state different from the state where the statement was seen. Id. 28 "In this case [personal injury], as in nearly all such cases, the conduct causing the injury and the injury itself occurred in the same jurisdiction. The phrase 'place of the tort,' as distinguished from 'place of wrong' and 'place of injury,' is used herein to designate the place where both the wrong and the injury took place." Babcock, supra, 240 N.Y.S.2d at 746 n.2. Furthermore, determining the lex locus of a defamatory statement is particularly difficult in an Internet case, such as this, where the "offending" material is simultaneously available for viewing in 50 states and innumerable foreign countries. The place of wrong/place of injury dichotomy explains why, in multistate defamation cases involving the World Wide Web as the means of publication, the application of the locus of the tort test "becomes cumbersome, if not completely impractical." Wells v. Liddy, 186 F.3d 505, 527 (4th Cir. 1999). In Wells, as here, the publication of the questioned statement on the Web was simultaneously made in multiple state jurisdictions. Not only was the statement seen in multiple jurisdictions, the plaintiff, if injured at all, was arguably injured in multiple jurisdictions. Applying the above rules to the facts of this case, it is clear that Mexico has the most significant relationship to both the posting of the articles on the Internet website, as well as the parties. First, it is undisputed that Banamex's principal place of business is in Mexico. Second, it is apparent from the face of Banamex's complaint that the most serious injury to Banamex's reputation from the Narco News Bulletin articles would have occurred in Mexico. In its complaint, Banamex alleges that "[i]ts efforts have been successful in making it one of the most respected banking institutions in Mexico, with one of the largest customer bases." Complaint at par. 8 (emphasis added). 29 Third, Mexico has a strong interest in protecting its resident businesses and in controlling the behavior that emanates from within its borders. 29 Therefore, by Banamex's own admissions, the primary place of injury is Mexico. In sharp contrast to the Mexican interests, New York's sole connection to the case (other than being the forum selected by the plaintiff) is that it was a location where the website was accessed--making New York no different than literally hundreds of jurisdictions which shared the same connection with the lawsuit. Accordingly, Mexico has the greatest interest in regulating the conduct in issue here and its substantive law should apply. 30 30 Banamex admits in its brief that under Mexican law, its right to proceed with a civil defamation case is predicated on a court finding of criminal liability. Since no criminal proceeding has been brought in Mexico against Narco News Bulletin, the civil suit here has no basis for going forward at this time. Hill v. Citicorp, 215 A.D.2d 117, 626 N.Y.S.2d 102, 103 (1st Dept. 1995). Plaintiff's concession that its cause of action was not viable in the state whose law was chosen by the court to apply (England) required a dismissal of the action in New York. E. The complaint should be dismissed here in New York on forum non conveniens grounds because all of the parties reside in Mexico, all of the documents and the vast majority of the witnesses are located in Mexico, the alleged defamatory statements emanated from Mexico concerning activity that occurred in Mexico and litigation regarding the same activity has already been commenced in Mexico. In addition, the undue burden that will be visited upon both the defendant Narco News and the court by litigating this case in New York is not justified by the tenuous nexus between the claim asserted and the forum. In New York, the following factors are weighed by the court to determine whether to dismiss a case on the ground of forum non conveniens: (1) whether all parties are non-residents, (3) whether the transaction out of which the cause of action arose primarily occurred in a foreign jurisdiction, (3) the potential hardship to the defendant, and (4) whether there is an alternate forum for suit. Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478-80, 467 N.E.2d 245, 478 N.Y.S.2d 597 (1984). Other relevant factors to consider include: the relative ease of access to sources of proof; the availability of compulsory process for witnesses; the cost of obtaining the attendance of witnesses; all other practical problems that make trial of a case easy, expeditious and inexpensive; the public interest factors such as choice of law considerations, as well as the relationship to the community in which the case will be tried and the occurrences that gave rise to the litigation; and the plaintiff's choice of forum. 31 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). 31 The plaintiff's choice of forum is given less deference when the plaintiff, as here, is a foreign national. Denmark v. Tzimas, 871 F.Supp. 261 (E.D.La. 1994), aff'd mem., 60 F.3d 582 (5th Cir. 1996). The rule of forum non conveniens is ultimately grounded on principles of justice, fairness and convenience--accordingly, no one of the above specific factors is controlling. Id. at 479; CPLR §327 ("When the court finds that in the interest of substantial justice the action should be heard in another forum, the court . . . may . . . dismiss the action . . . ."). See Silver v. Great American Insurance Co., 29 N.Y.2d 356, 278 N.E.2d 619, 328 N.Y.S 2d 398 (1971). Application of the above factors to this case strongly weighs in favor of dismissal. Most importantly: (a) all of the parties are residents of Mexico, (b) the statements attributed to Narco News Bulletin emanated from Mexico and were seen in Mexico, and (c) the alleged injury to the plaintiff occurred in Mexico where it does business and the potential for harm to its reputation is greatest. Furthermore, the cause of action is centered in Mexico, almost all of the witnesses and all of the documentary evidence are located in Mexico. Maintaining this action in this forum will require the wholesale transplantation of every aspect of this litigation from Mexico to New York. Not only will such a transplantation be inconvenient in the extreme, it will also be very costly. In addition, given the potential problem with obtaining compulsory process in Mexico, effective relief in New York may be impossible. The plaintiff may argue that an alternative forum in which it may bring suit does not exist because a similar action it brought in Mexico has been dismissed. This argument misconstrues the alternative forum factor by assuming that the forum must be available at this moment in time. That is not the import of the rule. The test is simply that another forum actually exists. Here, the other forum, Mexico, not only actually exists, it in fact was used by Banamex. Whether the plaintiff was (or will be) successful in the alternative forum is not part of the equation. In any event, this single factor, to the extent that it supports keeping the action in the forum, d <A HREF="http://www.ctrl.org/";>www.ctrl.org</A> DECLARATION & DISCLAIMER =========CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance—not soap-boxing—please! These are sordid matters and 'conspiracy theory'—with its many half-truths, mis- directions and outright frauds—is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. That being said, CTRLgives no endorsement to the validity of posts, and always suggests to readers; be wary of what you read. CTRL gives no credence to Holocaust denial and nazi's need not apply. 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