6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8
9 IHOR LEVYTSKY, IN ADMIRALTY Case No. 2:24-cv-00396-RSM 10 Plaintiff, 11 ORDER GRANTING DEFENDANTS’ v. MOTION TO DISMISS COMPLAINT 12 13 MEDITERRANEAN SHIPPING CO., MSC SHIPMANAGEMENT, LTD., BALTIC 14 EAST SHIPPING, LTD., and M/V MSC SHRISTI (IMO 9293442), in rem, 15 16 Defendants.
17 I. INTRODUCTION 18 This matter comes before the Court on Mediterranean Shipping Co., MSC 19 Shipmanagement, Ltd., Baltic East Shipping, Ltd., and M/V MSC Shristi (the “Vessel”), in rem 20 21 (collectively, “Defendants”)’ Motion to Dismiss Plaintiff’s Complaint. Dkt. #6. The Court finds 22 it can rule on the Motion without the need for oral argument and that the bulk of the case rests 23 on a dispositive issue of law, namely, whether dismissal is appropriate under the doctrine of 24 forum non conveniens. For the reasons set forth below, the Court GRANTS IN PART and 25 26 DENIES IN PART Defendants’ Motion. 27 28 II. BACKGROUND 1 2 On or about October 26, 2021, Plaintiff Ihor Levytsky was allegedly injured while 3 working as an engineer on the Vessel. At the time, the Vessel was traveling from Manzanillo, 4 Philippines, to the west coast of Canada, and was traveling northward along the west coast of the 5 United States. Dkt. #1, at 3. Besides suffering what appeared to be a stroke, Plaintiff experienced 6 severe headaches, high blood pressure, high pulses, and poor vision. Id. Some thirty-five days 7 8 after the alleged injury, on or about November 11, 2021, Defendants decided to disembark in 9 Seattle, Washington so Plaintiff could receive medical treatment. Mr. Levytsky was examined 10 at Eye Associates Northwest, PC, diagnosed with optic neuropathy, and recommended for MRIs 11 to be performed within the next few weeks. Id. On or about November 30, 2021, Defendants 12 13 sent Plaintiff back to Ukraine, where he resides, to continue his medical treatment. Plaintiff was 14 later diagnosed with an ischemic stroke, with hemorrhagic transformation recurrent by 15 atherothrombotic type in the right ZMA basin, left-sided homonymous hemianopsia1. Id. at 4. 16 Based on the above, Plaintiff alleges that Defendants failed to provide prompt and appropriate 17 medical care, seriously worsening his injuries. Id. at 4-5. 18 19 III. DISCUSSION 20 A. Legal Standard 21 Under the doctrine of forum non conveniens (“FNC”), a federal district court may dismiss 22 an action on the ground that a court abroad is the more appropriate and convenient forum for 23 adjudicating the controversy. Sinochem Int’l Co. Ltd v. Malaysia Int’l Shipping Corp., 549 U.S. 24 25 422, 425 (2007). District courts “[have] discretion to respond at once to a defendant’s [FNC] 26 27 1 It is the Court’s understanding that this kind of stroke involves bleeding of the brain or in the space between the 28 brain and its outer covering layer. Hemorrhagic Stroke: What It Is, Causes, Symptoms & Treatment (clevelandclinic.org) plea, and need not take up first any other threshold objection . . . [such as resolving] whether it 1 2 has authority to adjudicate the cause . . . or personal jurisdiction over the defendant if it 3 determines that . . . a foreign tribunal is plainly the more suitable arbiter of the merits of the case.” 4 Id. It is important to note that the common-law doctrine of FNC is applied by federal courts 5 “only in cases where the alternative forum is abroad.” Id at 430 (quoting American Dredging 6 Co. v. Miller, 510 U.S. 443, 449 (1994)). “A party moving to dismiss on grounds of [FNC] must 7 8 show two things: (1) the existence of an adequate alternative forum, and (2) that the balance of 9 private and public interest factors favors dismissal.” Loya v. Starwood Hotels & Resorts 10 Worldwide, Inc., 583 F.3d 656, 664 (quoting Lockman Found v. Evangelical Alliance Mission, 11 930 F.2d 764, 767 (9th Cir. 1990)). Private interest factors include: “(1) access to sources of 12 13 proof; (2) the availability of witnesses; and (3) enforceability of a judgment.” Reply S.P.A. v. 14 Sensoria, Inc., No. C19-0450-JCC, 2019 WL 3428572, *7 (W.D. Wash. 2019). Public interest 15 factors that courts must consider are: 16 (1) whether the trial will involve multiple sets of laws; 17 (2) selecting juries who may have a connection to the case; (3) local interest in having local disputes heard at home; and 18 (4) in diversity cases, having the trial in a forum that is at home with the state law 19 that must govern the case.
20 Id. 21 Lastly, a defendant invoking the doctrine of FNC “bears a heavy burden in opposing the 22 plaintiff’s chosen forum.” Id at 430. However, when the plaintiff’s choice is a forum abroad, 23 “the presumption in the plaintiff’s favor ‘applies with less force,’ [for such a forum is deemed] 24 25 ‘less reasonable.’” Id. (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981)). 26 B. Analysis 27 28 Plaintiff’s only alleged contact with the Western District of Washington occurred on or 1 2 about November 11, 2021, when the Vessel disembarked in Seattle, Washington so that he could 3 seek medical care. Dkt. #1 at 3. After receiving said medical care, on or about November 30, 4 2021, Mr. Levytsky went back to his home country of Ukraine to continue his medical treatment. 5 Id. at 4. In addition to this, Plaintiff signed a valid employment agreement with MSC 6 Shipmanagement, stating that “[t]he Terms & Conditions of his [e]mployment are governed by 7 8 National Law of Country of Seafarer’s official residence and in case of any claims or dispute the 9 competent court shall be the Seafarer’s Country of official residence.” Dkt. #8 at 3 (emphasis 10 added). In cases “[where] the Court is presented with a valid forum selection clause between the 11 parties, the [FNC] analysis is altered . . . the Court will deem the private factors to weigh entirely 12 13 in favor of dismissal and will only consider public interest factors weighing against dismissal.” 14 Reply S.P.A. v. Sensoria, Inc., 2019 WL 3428572, *7 (W.D. Wash. 2019). Here, the contract 15 agreement between Plaintiff and MSC Management expressly states that Ukraine, Mr. 16 Levytsky’s country of residence, shall be the competent forum for any claims between them and 17 Ukrainian law will control. Dkt. #8, at 3. Consequently, the Court will only address whether 18 19 Ukraine is an adequate alternative forum and whether public interest factors favor dismissal. 20 In Autobidmaster LLC v. Martyshenko, the court considered whether Ukraine was a 21 proper alternative forum for purposes of an FNC analysis involving a forum selection clause. 22 2021 WL 1907792, *1 (W.D. Wash. 2021). There, the forum clause at issue included Kiev, 23 Ukraine as a proper forum in which to bring any claims arising between the parties. Id. 24 25 Ultimately, the court ruled that Ukraine was a proper alternative forum given that the defendants 26 were citizens of Ukraine, thus amenable to process there, and because the plaintiff did not contest 27 that Ukraine offered a satisfactory remedy. Id. Here, the dispute is between a Ukrainian plaintiff 28 and three defendants that are formed under the laws of Liberia, Cyprus, and Libya, where they 1 2 are also headquartered. Dkt. #6 at 17. Additionally, the three defendants claim that they are 3 amenable to process in the jurisdiction of Ukraine and Cyprus. Id. at 14.
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6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8
9 IHOR LEVYTSKY, IN ADMIRALTY Case No. 2:24-cv-00396-RSM 10 Plaintiff, 11 ORDER GRANTING DEFENDANTS’ v. MOTION TO DISMISS COMPLAINT 12 13 MEDITERRANEAN SHIPPING CO., MSC SHIPMANAGEMENT, LTD., BALTIC 14 EAST SHIPPING, LTD., and M/V MSC SHRISTI (IMO 9293442), in rem, 15 16 Defendants.
17 I. INTRODUCTION 18 This matter comes before the Court on Mediterranean Shipping Co., MSC 19 Shipmanagement, Ltd., Baltic East Shipping, Ltd., and M/V MSC Shristi (the “Vessel”), in rem 20 21 (collectively, “Defendants”)’ Motion to Dismiss Plaintiff’s Complaint. Dkt. #6. The Court finds 22 it can rule on the Motion without the need for oral argument and that the bulk of the case rests 23 on a dispositive issue of law, namely, whether dismissal is appropriate under the doctrine of 24 forum non conveniens. For the reasons set forth below, the Court GRANTS IN PART and 25 26 DENIES IN PART Defendants’ Motion. 27 28 II. BACKGROUND 1 2 On or about October 26, 2021, Plaintiff Ihor Levytsky was allegedly injured while 3 working as an engineer on the Vessel. At the time, the Vessel was traveling from Manzanillo, 4 Philippines, to the west coast of Canada, and was traveling northward along the west coast of the 5 United States. Dkt. #1, at 3. Besides suffering what appeared to be a stroke, Plaintiff experienced 6 severe headaches, high blood pressure, high pulses, and poor vision. Id. Some thirty-five days 7 8 after the alleged injury, on or about November 11, 2021, Defendants decided to disembark in 9 Seattle, Washington so Plaintiff could receive medical treatment. Mr. Levytsky was examined 10 at Eye Associates Northwest, PC, diagnosed with optic neuropathy, and recommended for MRIs 11 to be performed within the next few weeks. Id. On or about November 30, 2021, Defendants 12 13 sent Plaintiff back to Ukraine, where he resides, to continue his medical treatment. Plaintiff was 14 later diagnosed with an ischemic stroke, with hemorrhagic transformation recurrent by 15 atherothrombotic type in the right ZMA basin, left-sided homonymous hemianopsia1. Id. at 4. 16 Based on the above, Plaintiff alleges that Defendants failed to provide prompt and appropriate 17 medical care, seriously worsening his injuries. Id. at 4-5. 18 19 III. DISCUSSION 20 A. Legal Standard 21 Under the doctrine of forum non conveniens (“FNC”), a federal district court may dismiss 22 an action on the ground that a court abroad is the more appropriate and convenient forum for 23 adjudicating the controversy. Sinochem Int’l Co. Ltd v. Malaysia Int’l Shipping Corp., 549 U.S. 24 25 422, 425 (2007). District courts “[have] discretion to respond at once to a defendant’s [FNC] 26 27 1 It is the Court’s understanding that this kind of stroke involves bleeding of the brain or in the space between the 28 brain and its outer covering layer. Hemorrhagic Stroke: What It Is, Causes, Symptoms & Treatment (clevelandclinic.org) plea, and need not take up first any other threshold objection . . . [such as resolving] whether it 1 2 has authority to adjudicate the cause . . . or personal jurisdiction over the defendant if it 3 determines that . . . a foreign tribunal is plainly the more suitable arbiter of the merits of the case.” 4 Id. It is important to note that the common-law doctrine of FNC is applied by federal courts 5 “only in cases where the alternative forum is abroad.” Id at 430 (quoting American Dredging 6 Co. v. Miller, 510 U.S. 443, 449 (1994)). “A party moving to dismiss on grounds of [FNC] must 7 8 show two things: (1) the existence of an adequate alternative forum, and (2) that the balance of 9 private and public interest factors favors dismissal.” Loya v. Starwood Hotels & Resorts 10 Worldwide, Inc., 583 F.3d 656, 664 (quoting Lockman Found v. Evangelical Alliance Mission, 11 930 F.2d 764, 767 (9th Cir. 1990)). Private interest factors include: “(1) access to sources of 12 13 proof; (2) the availability of witnesses; and (3) enforceability of a judgment.” Reply S.P.A. v. 14 Sensoria, Inc., No. C19-0450-JCC, 2019 WL 3428572, *7 (W.D. Wash. 2019). Public interest 15 factors that courts must consider are: 16 (1) whether the trial will involve multiple sets of laws; 17 (2) selecting juries who may have a connection to the case; (3) local interest in having local disputes heard at home; and 18 (4) in diversity cases, having the trial in a forum that is at home with the state law 19 that must govern the case.
20 Id. 21 Lastly, a defendant invoking the doctrine of FNC “bears a heavy burden in opposing the 22 plaintiff’s chosen forum.” Id at 430. However, when the plaintiff’s choice is a forum abroad, 23 “the presumption in the plaintiff’s favor ‘applies with less force,’ [for such a forum is deemed] 24 25 ‘less reasonable.’” Id. (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981)). 26 B. Analysis 27 28 Plaintiff’s only alleged contact with the Western District of Washington occurred on or 1 2 about November 11, 2021, when the Vessel disembarked in Seattle, Washington so that he could 3 seek medical care. Dkt. #1 at 3. After receiving said medical care, on or about November 30, 4 2021, Mr. Levytsky went back to his home country of Ukraine to continue his medical treatment. 5 Id. at 4. In addition to this, Plaintiff signed a valid employment agreement with MSC 6 Shipmanagement, stating that “[t]he Terms & Conditions of his [e]mployment are governed by 7 8 National Law of Country of Seafarer’s official residence and in case of any claims or dispute the 9 competent court shall be the Seafarer’s Country of official residence.” Dkt. #8 at 3 (emphasis 10 added). In cases “[where] the Court is presented with a valid forum selection clause between the 11 parties, the [FNC] analysis is altered . . . the Court will deem the private factors to weigh entirely 12 13 in favor of dismissal and will only consider public interest factors weighing against dismissal.” 14 Reply S.P.A. v. Sensoria, Inc., 2019 WL 3428572, *7 (W.D. Wash. 2019). Here, the contract 15 agreement between Plaintiff and MSC Management expressly states that Ukraine, Mr. 16 Levytsky’s country of residence, shall be the competent forum for any claims between them and 17 Ukrainian law will control. Dkt. #8, at 3. Consequently, the Court will only address whether 18 19 Ukraine is an adequate alternative forum and whether public interest factors favor dismissal. 20 In Autobidmaster LLC v. Martyshenko, the court considered whether Ukraine was a 21 proper alternative forum for purposes of an FNC analysis involving a forum selection clause. 22 2021 WL 1907792, *1 (W.D. Wash. 2021). There, the forum clause at issue included Kiev, 23 Ukraine as a proper forum in which to bring any claims arising between the parties. Id. 24 25 Ultimately, the court ruled that Ukraine was a proper alternative forum given that the defendants 26 were citizens of Ukraine, thus amenable to process there, and because the plaintiff did not contest 27 that Ukraine offered a satisfactory remedy. Id. Here, the dispute is between a Ukrainian plaintiff 28 and three defendants that are formed under the laws of Liberia, Cyprus, and Libya, where they 1 2 are also headquartered. Dkt. #6 at 17. Additionally, the three defendants claim that they are 3 amenable to process in the jurisdiction of Ukraine and Cyprus. Id. at 14. Based on this and the 4 fact that the only contact between the parties and the Western District of Washington occurred 5 by happenstance, the Court rules that Ukraine is a proper alternative forum in which Mr. 6 Levytksy can bring his claims. 7 8 Moving on to the public interest factors that must be considered, the Court will address 9 each in turn. Starting with the set of laws governing the proceedings, given that the employment 10 agreement expressly requires that the laws of Ukraine be controlling in any claims arising 11 between the parties, this factor favors dismissal because the courts in Ukraine are better suited to 12 13 address the issues presented by the case. See Dkt. #8 at 3. Regarding the implications that jury 14 duty would have on the potential jurors of this District, given that the contact between the parties 15 and the District are minimal, potential jurors would have no relation to this dispute, and “jury 16 duty…ought to not be imposed upon the people of a community which has no relation to the 17 litigation.” In re Air Crash Disaster near Bombay India, 531 F. Supp. 1175, 1176 (W.D. Wash. 18 19 1982) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)). Thus, this second factor also 20 favors dismissal. Moving on to the local interest in having local disputes heard at home, and for 21 the reasons stated above, the Western District of Washington has no “identifiable local interest 22 in the controversy,” such as “ensuring the welfare of the residents[],” nor does it have any 23 discernable interest in the outcome of this matter. Thus, given that either Ukraine or Cyprus has 24 25 a greater interest in the outcome of this dispute, this third factor favors dismissal. The court will 26 not address the fourth public interest factor, since it deals exclusively with diversity cases. In 27 28 sum, the Court finds that private and public interest factors favor dismissal and either Ukraine or 1 2 Cyprus as the proper, more convenient forum. 3 4 IV. CONCLUSION 5 Accordingly, having reviewed the relevant briefing and the remainder of the record, the 6 Court hereby finds and ORDERS that Defendants’ Motion to Dismiss, Dkt. #6, is GRANTED 7 8 IN PART and DENIED IN PART. Defendants’ Motion to Dismiss for Forum Non Conveniens 9 is GRANTED. Defendants’ Motion to Dismiss pursuant to Federal Rules of Civil Procedure 10 12(b)(2), 12(b)(4), and 12(b)(5) is DENIED as moot. 11
12 13 DATED this 22nd day of July, 2024. 14 A 15 16 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 17 18
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