Everard Findlay Consulting, LLC v. Republic of Suriname

Background

Everard Findlay Consulting, LLC sued the Republic of Suriname for allegedly breaching a Branding Consultation Agreement. Under the agreement, Everard was to provide branding, marketing, public-relations, and tourism-promotion services for Suriname. The agreement required an initiation fee of $60,000, a monthly fee of $16,040, project fees, and transportation and hotel expenses. The disputed project was the “We Are Suriname” Campaign, whose estimated cost was $3,879,211. Everard alleged that Suriname made late payments and eventually stopped paying, leaving approximately $2.2 million owed for the Campaign. Suriname argued that Everard’s work was inadequate and that this justified stopping payment.

The agreement was signed in New York City. Everard was organized under New York law, operated from New York, and had a sole member who lived in New York and was a U.S. citizen. The parties disputed where the Campaign was conceived and performed. Everard said much of the creative and technical work occurred in New York through New York-based subcontractors; Suriname said the Campaign was conceived and centered in Suriname. The parties agreed that Everard’s sole member traveled to Suriname at least ten times and held multiple meetings there.

The court had previously dismissed Everard’s amended complaint for lack of jurisdiction under the Foreign Sovereign Immunities Act. The Second Circuit reversed that decision and sent the case back for the district court to consider Suriname’s remaining argument that the case should be dismissed under forum non conveniens, a doctrine allowing a court to decline to hear a case when another forum would be substantially more appropriate. Suriname then filed the supplemental motion addressed in this opinion.

Forum Non Conveniens Analysis

The court applied a three-step analysis: the amount of deference owed to Everard’s choice of forum, whether Suriname was an adequate alternative forum, and whether private and public interests strongly favored litigating in Suriname.

The court gave Everard’s choice of New York substantial deference. Everard sued in its home forum, and the dispute had significant connections to New York. The agreement was negotiated and signed in New York; Everard alleged that substantial work was performed there; payments were made in U.S. dollars to U.S. bank accounts; and the Campaign allegedly targeted the U.S. travel market. The court rejected Suriname’s argument that Everard’s decision to seek business in Suriname reduced the deference owed to Everard’s choice of New York.

The court found that Suriname was an adequate alternative forum. Suriname stated that it was subject to process in its courts, that its courts could hear the contract dispute, and that Everard could present evidence and appeal an adverse ruling. The court rejected Everard’s arguments that delays, alleged corruption, Suriname’s fee rules, and the possible application of a statute of limitations made Suriname inadequate. Suriname stated that it was willing to waive any limitations defense arising between the filing of the New York action and its dismissal. The court also found that Everard’s generalized concerns about possible harm to its member or witnesses in Suriname did not establish that Suriname was an inadequate forum.

The private-interest factors slightly favored Suriname. More witnesses and documents might be located there, and some evidence would require translation. But substantial creative work and relevant witnesses were located in New York, the work was portable, and litigating abroad would likely impose a greater burden on Everard than on Suriname. The court also found that translation costs would arise in either forum.

The public-interest factors favored Suriname at most moderately. Suriname had a strong interest because the dispute concerned conduct there, sought payment from Suriname’s treasury, and involved promoting Suriname’s people and places. New York also had a significant interest because the dispute involved a New York company, a New York resident, and an agreement negotiated and signed in New York. The court found no established advantage based on court congestion and concluded that the possibility of applying foreign law alone did not justify dismissal.

Disposition

Because the private and public interests did not strongly favor Suriname, they did not overcome the substantial deference given to Everard’s choice of New York. Judge Alison J. Nathan denied Suriname’s motion to dismiss. The court also denied Suriname’s request for oral argument as unnecessary and ordered the parties to file a revised case-management plan within two weeks. The opinion resolves docket numbers 54 and 62.